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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Huit v. Ashwater Burns, Inc., 372 P3d 904 (6/17/2016) sp-7111

Huit v. Ashwater Burns, Inc., 372 P3d 904 (6/17/2016) sp-7111

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  REPORTER.  

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                        



JOSEPH  D.  HUIT,                                                     )  

                                                                      )      Supreme  Court  No.  S-15514  

                                 Petitioner,                          )  

                                                                                                          

                                                                      )     Alaska Workers' Compensation  

                                                                                                                         

           v.                                                         )     Appeals Commission No.  13-016  

                                                                      )  

                                                       

ASHWATER BURNS, INC., et al.,                                                                    

                                                                      )     O P I N I O N  

                                                                      )  

                                 Respondents.                                                                   

                                                                      )     No. 7111 - June 17, 2016  

                                                                      )  



                                    

                      A                                                                                    

                         ppeal from the Alaska Workers' Compensation Appeals  

                      Commission.  



                                                                                                            

                      Appearances: Robert A. Rehbock and Andrew D. Wilson,  

                                                                                                                     

                      Rehbock & Rehbock, Anchorage, for Petitioner.  Robert L.  

                                                                                                      

                      Griffin and Aaron M. Sandone, Griffin & Smith, Anchorage,  

                                                                                                          

                      for Respondents.   Laura Fox, Assistant Attorney General,  

                                                                                                         

                      Anchorage,  and  Craig  W.  Richards,  Attorney  General,  

                                                                                 

                      Juneau, for Amicus Curiae State of Alaska.  



                                                                                                            

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

                                                                            

                      Justices.  [Maassen, Justice, not participating.]  



                                           

                      WINFREE, Justice.  


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

I.         INTRODUCTION
  



                      This  appeal  presents  our  first  opportunity  to  consider  whether  City  &  

                                                                                                                                              



                                                         1  

Borough of Juneau v. Thibodeau,  

                                                                                                                                                

                                                           holding that a superior court decision remanding a  



                                                                                                                                           

case to an administrative agency is not a final judgment for purposes of appeal to this  



          2  

                                                                                                                                                   

court,  should apply to Alaska Workers' Compensation Appeals Commission decisions.  



                                                 

We conclude that it should.  



                                                                                                                                          

                      This appeal also presents our first opportunity to consider, at least in part,  



                                                                                                                                       

the  legislature's  2005  amendments  to  the  Alaska  Workers'  Compensation  Act's  



                                                                                                                                            

presumption analysis.  We reverse the Commission's application of that analysis in this  



                                              

case and modify its earlier precedent.  



                                                                                                                               

II.        OVERVIEW OF THE RELEVANT LEGAL ISSUES BEFORE US  



                                                                           

           A.          City & Borough of Juneau v. Thibodeau  



                                                                                                                         

                      Before  the  Commission's  creation  an  Alaska  Workers'  Compensation  



                                                                                                                                            

Board decision could be appealed to the superior court, and a party dissatisfied with the  

                                                                                                                           3  Construing  

                                                                                                                               

superior court's final resolution of the case then could appeal to this court. 



the appellate rules, we decided in Thibodeau that "a decision of a superior court, acting  

                                                                                                                                       



as an intermediate appellate court, which reverses . . . the decision of an administrative  

                                                                                                                          

agency and remands for further proceedings, is a non-final order of the superior court."4  

                                                                                                                                     



           1           595 P.2d 626 (Alaska 1979),                     disavowed on other grounds by State v. Alex                              ,  



646 P.2d 203, 208 n.4 (Alaska 1982).                 



           2          Id. at 629.  

                                 



           3           Cf. Municipality of Anchorage v. Anderson, 37 P.3d 420, 420-21 (Alaska  

                                                                                                                                    

2001) (dismissing appeal because superior court order was not final).  

                                                                                                           



           4           Thibodeau, 646 P.2d at 629.  

                                                                        



                                                                      -2-                                                               7111
  


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

                                                                                                               5  

                         In 2005 the legislature created the Commission,                                         a quasi-judicial agency in                  



                                      6                                                                                                      7  

the executive branch                                                                                                                                   

                                        authorized to hear appeals from decisions of the Board,  and gave  

                                                                                                                                                     8   The  

                                                                                                                                                         

                                                                                                                                           

parties to a Commission decision the right to appeal a "final" decision to this court. 



legislature also authorized our review of other Commission orders "as provided by the  

                                                                                                                                                          

Alaska Rules of Appellate Procedure."9  

                                                                            



                         In the case before us the Commission decided that its decision was final as  

                                                                                                                                                            



to some issues but not as to others and gave the parties notice that they could appeal to  

                                                                                                                                                            



this  court  those  parts  of  the  decision  that  were  "final"  but  needed  to  petition  for  

                                                                                                                                                          



discretionary review if they wanted review of the "non-final" portions of the order. The  

                                                                                                                                                         



injured worker appealed a "final" part of the decision. We ordered the parties to provide  

                                                                                                                                                  



supplemental briefing on the question of the finality of the Commission's decision and  

                                                                                                                                                         



the applicability of the Thibodeau rule to the Commission's decision.  

                                                                                                                                  



            B.           Three-Step Presumption Analysis  

                                                                           



                         In addition to creating the Commission the 2005 amendments to the Alaska  

                                                                                                                                                    

Workers' Compensation Act changed the causation standard for compensable injuries.10  

                                                                                                                                                                  



At issue here is the effect of this change on the presumption analysis used to evaluate  

                                                                                                                                                



workers' compensation cases.  

                                             



            5            Ch. 10,  8, FSSLA 2005.              



            6  

                                                                                                                                                  

                         See Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 47 (Alaska  

                                                                                                                                              

2007) (holding that the Commission is "a properly established quasi-judicial agency").  



            7            AS  23.30.128(a).  



            8            AS  23.30.129(a).  



            9           Id.  



            10           See  ch.   10,    9,  FSSLA  2005.  



                                                                             -3-                                                                      7111
  


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

                          1.           Pre-2005 analysis   



                                                                                                                                11  

                          For work-related injuries before November 7, 2005,                                                                                     

                                                                                                                                     application of the  



                                                                                                                             12  

                                                                                                                                                                  

presumption of compensability consisted of three possible steps.                                                                  At the first step the  



                                                                                                                                                                   

employee was required to attach the presumption that the disability was work related by  



                                                                                                                                                            13  

                                                                                                                                                                 To  

"establish[ing] a preliminary link between his disability and his employment." 



                                                                                                                                                             

establish the link the employee was required to offer " 'some evidence' that the claim  



                                                                            14  

                                                                                                                                                                  

arose out of the worker's employment."                                           If the employee attached the presumption, the  



                                                                                                                                                                   

burden shifted to the employer to offer substantial evidence that either (1) provided an  



                                                                                                                                                                 

alternative explanation  excluding  work-related  factors as a substantial cause of the  



                                                                                                                                                                      

disability, or (2) "directly eliminated any reasonable possibility that employment was a  

                                                                   15      We  called  the  two  methods  of  rebutting  the  

                                                                                                                                                                 

                                             

factor  in  causing  the  disability." 

                                                                                                                    16  An employer could rebut  

presumption"affirmativeevidence"and"negativeevidence."                                                                                                        

                                                                                                



the presumption by presenting a qualified expert's testimony that the claimant's work  

                                                                                                                                                              



             11           Ch. 10, FSSLA 2005 (demonstrating effective date of November 7, 2005                                                                



for addressing the presumption).       



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

                                                                                                                                                       

Constr. Co. v. Jordan, 904 P.2d 386, 389 (Alaska 1995)).  

                                                                                                  



             13           Steffey v. Municipality of Anchorage, 1 P.3d 685, 690 (Alaska2000) (citing  

                                                                                                                                                            

Stephens v. ITT/Felec Servs., 915 P.2d 620, 624 (Alaska 1996)).  

                                                                                                               



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

                                                                                                                                                      

Gillispie v. B & B Foodland, 881 P.2d 1106, 1109 (Alaska 1994)).  

                                                                                                                   



             15           Id.  at 611 (quoting  Williams v. State, Dep't of Revenue, 938 P.2d 1065,  

                                                                                                                                                             

 1072 (Alaska 1997)).  

                                           



             16           See Veco, Inc. v. Wolfer, 693 P.2d 865, 872 (Alaska 1985).  

                                                                                                                                



                                                                                 -4-                                                                          7111
  


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

                                                                                                         17  

was probably not a substantial cause of the disability.                                                       The first two stages of the                    

analysis required the Board to consider the evidence in isolation without weighing it.                                                                         18  



                         If the employer presented enough evidence to rebut the presumption, the  

                                                                                                                                                             



burden shifted back to the employee to prove the claim by a preponderance of the  

                                                                                                                                                             

evidence.19   Only at the third stage could the Board weigh the evidence.20   The employee  

                                                                                                                                                 



had to show by a preponderance of the evidence that work was a substantial factor in  

                                                                                                                                                               



causing the disability:   to prevail, the employee had to show that "(1) 'but for' the  

                                                                                                                                                             



employment the disability would not have occurred, and (2) reasonable persons would  

                                                                                                                                                       

regard the employment as a cause and attach responsibility to it."21  

                                                                                                                     



             17          Bradburyv.             Chugach Elec. Ass'n                   , 71 P.3d 901, 906               (Alaska2003) (quoting       



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



             18          Tolbert,  973  P.2d  at  610  ("For  purposes  of  determining  whether  the  

                                                                                                                                                            

claimant has established the preliminary link, only evidence that tends to establish the  

                                                                                                                                                             

link is considered - competing evidence is disregarded." (citing Veco, 693 P.2d at 869- 

                                                                                                                                                           

70));  Stephens,  915  P.2d at 624 ("[W]e examine the evidence tending to rebut the  

                                                                                                                                                             

presumption by itself in determining whether substantial evidence has been presented."  

                                                                                                                                              

(citing Veco, 693 P.2d at 869)).  

                                                 



             19          Tolbert, 973 P.2d at 611 (citing La. Pac. Corp. v. Koons, 816 P.2d 1379,  

                                                                                                                                                        

 1381 (Alaska 1991)).  

                           



             20          Steffey v. Municipality of Anchorage, 1 P.3d 685, 691 (Alaska2000) (citing  

                                                                                                                                                       

Stephens, 915 P.2d at 627).  

                                           



             21           Williams, 938 P.2d at 1072 (citing Fairbanks N. Star Borough v. Rogers &  

                                                                                                                                                                

Babler, 747 P.2d 528, 532 (Alaska 1987)).  

                                                                    



                                                                               -5-                                                                       7111
  


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

                              2.             The 2005 amendments     



                                                                                                                                                                       22  

                              In 2005 the legislature repealed and reenacted AS 23.30.010,                                                                                 modifying  



                                                                                                                                                                                

the standard for compensability of work-related injuries.  The legislature also included  



                                                                                                                                                                       

in the reenacted statute a presumption analysis formulation. Alaska Statute 23.30.010(a)  



            

now provides:  



                                                                                                                         [23]  

                                                                                                                                                                 

                              Except as provided in (b) of this section,                                                        compensation or  

                                                                                                                                                         

                              benefits are payable under this chapter for disability or death  

                                                                                                                                                             

                              or  the  need  for  medical  treatment  of  an  employee  if  the  

                                                                                                                                                          

                              disability or death of the employee or the employee's need  

                                                                                                                                                              

                              for medical treatment arose out of and in the course of the  

                                                                                                                  

                              employment.                              To          establish                 a       presumption                        under  

                                                                                                                                                               

                              AS 23.30.120(a)(1) that the disability or death or the need for  

                                                                                                                                                             

                              medical  treatment  arose  out  of  and  in  the  course  of  the  

                                                                                                                                                           

                              employment,  the  employee  must  establish  a  causal  link  

                                                                                                                                                       

                              between the employment and the disability or death or the  

                                                                                                                                                   

                              need for medical treatment.  A presumption may be rebutted  

                                                                                 

                              by a demonstration of substantial evidence that the death or  

                                                                                                                                                              

                              disability or the need for medical treatment did not arise out  

                                                                                                                                          

                              of and in the course of the employment.  When determining  

                                                                                                                                                   

                              whether or not the death or disability or need for medical  

                                                                                                         

                              treatment arose out of and in the course of the employment,  

                                                                                                                                                              

                              the  [B]oard  must  evaluate  the  relative  contribution  of  

                                                                                                                                                              

                              different causes of the disability or death or the need for  



               22             Ch.   10,      9,   FSSLA   2005.     The   repealed   provision   simply   stated:   



"Compensation is payable under this chapter in respect of disability or death of an                                                                                                          

employee."   Former AS 23.30.010 (2004).                                        



                              The legislature did not amend AS 23.30.120(a), the statutory subsection                                                                      

containing several presumptions related to workers' compensation, in 2005.                                                                                                 See  ch. 10,   

FSSLA 2005.                      AS 23.30.120(a)(1) provides:                                         "In a proceeding for the enforcement of a                                                  

claim for compensation under this chapter it is presumed, in the absence of substantial                                                                                    

evidence to the contrary, that . . . the claim comes within the provisions of this chapter                                                                                        

. . . ."       



               23             AS 23.30.010(b) is about mental injury and is not an issue in this case.  

                                                                                                                                                                                   



                                                                                              -6-                                                                                       7111
  


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

                            medical   treatment.     Compensation   or   benefits   under   this  

                            chapter are payable for the disability or death or the need for                                                          

                            medical    treatment    if,    in    relation    to    other    causes,    the  

                            employment is the substantial cause of the disability or death                                                      

                            or need for medical treatment.              



The legislature did not amend the definition of "arising out of and in the course of                                                                                              

employment" in AS 23.30.395 in 2005.                                                24  



                            In Runstrom v. Alaska Native Medical Center the Commission construed  

                                                                                                                               



the new statutory language as changing the presumption analysis only at the second and  

                                                                                                                                                                                

third stages.25                 The Commission previously had interpreted the phrase "the substantial  

                                                                                                                                                                 



cause" in AS 23.30.010(a) as meaning that a disability is compensable if, in comparison  

                                                                                                                                                               

to other causes, work is the most important factor in bringing about the disability.26                                                                                            In  

                                                                                                                                                                                   



considering how the statutory change affected the second stage, the Commission in  

                                                                                                                                                                                   



Runstrom  decided that the negative-evidence test from our prior cases - "directly  

                                                                                                                                                                    



eliminat[ing] any reasonable possibility that employment was a factor in causing the  

                                                                                                                                                                                 

disability"27   -  was  now  "incompatible  with  the  statutory  standard  for  causation"  

                                                                                                                                                                



because under the amended statute "employment must be more than a factor in terms of  

                                                                                                                                                                                   

causation."28  It also determined in Runstrom that an employer can rebut the presumption  

                                                                                                                                                             



              24            See  ch.   10,    66-67,  FSSLA  2005  (amending  AS  23.30.395).   



              25            AWCAC  Dec.  No.   150  at  6  (Mar.  25,  2011).    



              26             City  of  Seward  v.  Hansen,  AWCAC  Dec.  No.  146  at  12-14  (Jan.  21,  2011).  



              27             Williams  v. State,  Dep't of  Revenue, 938 P.2d 1065, 1072  (Alaska   1997)  



(emphasis  added)  (quoting  Gillispie  v.  B  &  B  Foodland,  881  P.2d   1106,   1009)  (Alaska  

 1994)).   



              28            Runstrom, AWCAC Dec. No.  150 at 7 (emphasis in original).  

                                                                                                                                            



                                                                                         -7-                                                                                 7111
  


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

by showing "that a cause other than employment played a greater role in causing the                                                           



                          29  

disability . . . ."            



                       TheCommission decidedherethat theemployer hadmetitsburden through  

                                                                                                                                       



expert opinionsnot identifying an alternativecausebut nonetheless concluding that work  

                                                                                                                                           



was probably not the substantial cause of the employee's need for medical treatment.  

                                                                                                                                                     



The parties dispute whether the employer rebutted the presumption and in so doing raise  

                                                                                                                                            



the question of the 2005 amendments' impact on the second stage of the presumption  

                                                                                                                              



analysis both generally and as applied to this case.  

                                                                              



III.       FACTS AND PROCEEDINGS  

                                      



                       Joseph Huit worked for Ashwater Burns, Inc. in 2010. Early in November  

                                                                                                                                  



he was working on a remodel project, and as part of the job he removed a water-damaged  

                                                                                                                         



vanity from a bathroom.  As he was carrying the vanity he scratched his abdomen on a  

                                                                                                                                                  



protruding drywall screw; he showed the scratch to some people at the job site, including  

                                                                                                                                    



his brother Steven, but did not file a report of injury.  

                                                                                           



                       Late that night Huit left Alaska to visit his daughter and grandchildren in  

                                                                                                                                                



Florida. Near the end of the visit his daughter noticed the scratch, which she thought was  

                                                                                                                                             



inflamed. Huit flew back to Alaska, stopping for a long layover in Seattle where he met  

                                                                                                                                             



with his wife, who had been caring for her father in Oregon.  His wife also noticed the  

                                                                                                                                              



scratch and told him to watch it.  According to Huit at some point later in November the  

                                                                                                                                              



scratch appeared to heal.  

                                            



                       On Friday December 3 Huit felt ill at work, so he went to the emergency  

                                                                                                                      



room.  After testing Huit the doctor diagnosed a likely "viral syndrome" and told Huit  

                                                              



to go home and rest but to return for a recheck if a fever still was present the following  

                                                                                                                                   



Monday.  Huit stayed home for about five days, but his symptoms did not improve -  

                                       



           29         Id.  



                                                                       -8-                                                                     7111  


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

they got worse.                 On December 9 he returned to the emergency room, where he was                                                                  



                                                       30  

diagnosed with endocarditis;                                                                                                                           

                                                           he was hospitalized for several weeks while he received  



                                                                                                                                                                

antibiotics to treat the infection.  The emergency room physician wrote that Huit had  

                                                     31  and commented that he "had no history of IV drug abuse."  

                                                                                                                                                                        

                            

"spontaneous endocarditis" 



Upon admission another physician noted that there was "[n]o evidence of significant  

                                                                                                                                                  



rash, erythema, breakdown, or bruising." An infectious-disease doctor was consulted as  

                                                                                                                                                                   



well; he observed that Huit's blood cultures were "growing Staphylococcus aureus," a  

                                                                                                                                                                     



type of bacteria, and reported "[m]etastatic lesions to the spleen, kidneys and brain" as  

                                                                                                                                                                   



well as "probable vegetation" on Huit's heart.  

                                                                                          



                          Studies of Huit's heart showed progressive damage.  An echocardiogram  

                                                                                                                                        



in late December 2010 indicated "[m]oderate to severe aortic regurgitation," when two  

                                                                                                                                                                



weeks earlier there had been only mild regurgitation and the valve opened well.  By  

                                                                                                                                                                 



January 2011 Huit had severe aortic regurgitation, and in February he underwent aortic  

                                                                                                                                                            



valve replacement surgery.  

                                                       



                          Huit first thought about the possibility that the infection was work related  

                                                                                                                                                          



while  he  was  hospitalized;  he  explained  that  after  the  doctors  told  him he  had  an  

                                                                                                                                                                 



infection, he remembered the scratch and notified his employer.  Ashwater Burns filed  

                                                                                                                                                              



a  report  of  injury  on  December  21  and  later  controverted  benefits,  relying  on  a  

                                                                                                                                                                    



cardiologist's opinion formed after reviewing Huit's medical records.  One of Huit's  

                                                                                                                                                          



treating physicians, Dr. Robert Bundtzen, an infectious-disease specialist, noted on  

                                                                                                                                                                 



January 4, 2011 that an "abdominal abrasion" as described by Huit was "apossible portal  

                                                                                                                                                            



             30           "Endocarditis" is an inflammation of the innermost layer of heart tissue;                                                        



bacterial endocarditis leads "to deformity and destruction of the valve leaflets of the                                                                         

heart."   STEDMAN'S  MEDICAL  DICTIONARY  638,639 (28th ed. 2006).                                                      



             31           "Spontaneous" medically is defined as "[w]ithout apparent cause; said of                                                                 



disease processes or remissions."                                 Id.  at 1814.   



                                                                                 -9-                                                                         7111
  


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

of entry" for the staph bacteria.                                                                             Huit filed a written workers' compensation claim for                                                                                                                          



several benefits, including temporary total disability and medical costs, in early January                                                                                                                                                                                   



2011.    



                                              Ashwater   Burns's employer's independent medical evaluation                                                                                                                                                                 (EIME)  



consisted of records reviews by two physicians: a cardiologist and an infectious-disease                                                                                                                                                  



specialist.   Dr. Semler, the cardiologist, was skeptical that the scratch had happened or                                                                                                                                                                                                      



that it was the cause of the infection because "[a] screw does not cause Staph[]ylococcus                                                                                                                                                   



infection. . . . [I]t has never been reported in medical literature that Staphylococcus grows                                                                                                                                                                                      



on screws."                               He concluded:                                         "The more likely medical explanation for the cause of the                                                                                                                                   



bacterial endocarditis is unknown, not related to the speculated 'scratch' injury if it                                                                                                                                                                                                          



occurred at all."                                       Dr. Leggett, the infectious-disease specialist, did not think the scratch                                                                                                                                              



"was a more probable than not substantial cause of [Huit's]                                                                                                                                                             S. aureus                           aortic valve   



endocarditis."   He acknowledged that with this type of infection "[t]he portal of entry                                                                                                                                                                                             



may  be   rather   insignificant,   such   as   the   alleged   abrasion/scratch,"   but   thought   the  



infection was "just as likely to occur outside of work as at work."                                                                                                                                                            He observed that the                                          



source of the bacteria was Huit's "own skin," not the drywall screw.                                                                                                                                                                             He also cited a                                   

study showing that "13% of                                                                        S. aureus  bacteremias[32]  had no identifiable source" and  

                                                                                                                                                                                                                                                                                          



concluded Huit fell into that category. Dr. Leggett wrote that it was unlikely "an infected  

                                                                                                                                                                                                                                                                            



local wound" would be visible three to four weeks later.  He did not think the outcome  

                                                                                                                                                                                                                                                                          



would have been different if Huit had sought medical treatment when the scratch first  

                                                                                                                                                                                                                                                              



became inflamed.  

                                                              



                                              Because of the difference in medical opinions about causation, the Board  

                                                                                                                                                                                                                                                                                  



ordered   a   second   independent   medical   evaluation   (SIME),   consisting   of   two  

                                                                                                                                                                                                                                                                                      



                       32  

                                                                                                                                                                                                                                                                                              

                                              "Bacteremia" refers to the presence of live bacteria in the bloodstream. Id.  

        

at 195.  



                                                                                                                                             -10-                                                                                                                                                    7111  


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

examinations several months apart, one by Dr. William Breall, a cardiologist, and the                                                                                                                                                                                                                                                                                             



other by Dr. Francis Riedo, an infectious-disease specialist.                                                                                                                                                                                                                  Dr. Breall wrote that no                                                                             



evidence in the medical records "indicate[d] that the scratch on the abdomen caused a                                                                                                                                                                                                                                                                                                     



bacteremia"; to support this statement, he noted that the scratch "did not produce pus,"                                                                                                                                                                                                                                                                                



the scratch "was not infected," and "no culture [was] obtained from [the] scratch at the                                                                                                                                                                                                                                                                                          



time that it was red in appearance."                                                                                                                           Dr. Breall concluded there was "no hard evidence                                                                                                                                         



to indicate that Mr. Huit had an industrial accident" that caused the infection, but he                                                                                                                                                                                                                                                                                             



agreed with Dr. Bundtzen that the abdominal scratch was "a 'possible' portal of entry."                                                                                                                                                                                                                                                                                                             



                                                           Dr. Riedo also thought it was possible but not probable that the "scratch                                                                                                                                                                                                                       



was the substantial cause of Mr. Huit's endocarditis."                                                                                                                                                                                                He thought it was "medically                                                           



reasonable that a scratch as described" could cause endocarditis, but he also thought a                                                                                                                                                                                                                                         



 scratch of that nature would still have been visible three to four weeks later.                                                                                                                                                                                                                                                                 Dr. Riedo   



did not think Huit's work-related "injury or condition aggravate[d], combine[d] with or                                                                                                                                                                                                                                                                                               



accelerate[d] any condition whose treatment or disability [was] not otherwise" work                                                                                                                                                                                                                                                                                    



related.  He concluded, "I do not believe that the purported scratch or infected scratch   



was the source of Mr. Huit's infection on a more probable than not basis."                                                                                                                                                                                                                                                                  



                                                           Huit moved to Idaho and began treating with Dr. Dennis Stevens at the                                                                                                                                                                                                                                                 

                                                                                                                                                                                                                                                          33           Based on Huit's reports the  

Boise Veterans Administration (VA) beginning in 2013.                                                                                                                                                                                                                                                                                                                             



VA  medical  staff  thought  the  work-related  scratch  was  the  likely  cause  of  Huit's  

                                                                                                                                                                                                                                                                                                                                                                  



endocarditis.  

                                                           



                                                            The Board held a hearing solely about the compensability of Huit's illness.  

                                                                                                                                                                                                                                                                                                                                                                                                    



 Several lay witnesses testified, but no doctors did.  The focus of the testimony was the  

                                                                                                                                                                                                                                                                                                                                                                                  



witnesses' observations of Huit's abdominal scratch.  At the conclusion of the hearing  

                                                                                                                                                                                                                                                                                                                                                              



                              33  

                                                                                                                                                                                                                                                                                                                                                          

                                                           Huitbegan receiving VAbenefits after hedevelopedendocarditis,although  

                                                                                                                                                              

he had been eligible for some time.  



                                                                                                                                                                                       -11-                                                                                                                                                                                                   7111  


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

Huit argued that he had attached the presumption and his employer had not rebutted it     



because the doctors the employer relied on could not eliminate work as a causal factor                                                                                                                                               



in his need for medical treatment and subsequent disability. The employer argued it had                                                                                                                                                   



rebutted   the   presumption   through   expert   reports   that   concluded   work   was   not   the  



substantial cause of Huit's endocarditis.                                                                               It also contended Huit had not reported the                                                                          



injury in a timely manner.                                                  



                                      To resolve the compensability question, the Board first considered whether                                                                                                                



Huit had in fact scratched himself at work.                                                                                The Board decided this was not a complex                                                         



medical question,                                    and   it applied                            the three-step                             presumption   analysis to                                               this factual   

                          34  It found that Huit had attached the presumption through his testimony and  

question.                                                  



the testimony of his brother Steven.  The Board determined that Ashwater Burns had  

                                                                                                                                                                                                                                           



rebutted the presumption with a chart note from the hospital "that '[t]here is no good  

                                                                                                                                                                                                                                       



portal of entry' " and with a medical opinion that the scratch would still have been  

                                                                                                                                                                                                                                        



visible on December 9, the date Huit was admitted to the hospital.   The Board then  

                                                                                                                                                                                                                                         



weighed the evidence, giving the medical testimony less weight because doctors had  

                                                                                                                                                                                                                                           



given completely different opinions about whether a scratch like the one Huit described  

                                                                                                                                                                                                                           



would still be visible when he went to the emergency room.  The Board gave the lay  

                                                                                                                                                                                                                                             



testimony more weight; it found that Huit had suffered a scratch in the course and scope  

                                                                                                                                                                                                                                      



of his employment with Ashwater Burns.  

                                                                                                                        



                                      The Board then turned to the endocarditis.   The Board found Huit had  

                                                                                                                                                                                                                                           



attached  the  presumption  the  endocarditis  was  work  related  through  Dr.  Stevens's  

                                                                                                                                                                                                                         



opinion that the scratch was "the only potential portal of entry for the infection."  The  

                                                                                                                                                                                                         



Board interpreted prior Commission decisions as requiring Ashwater Burns to "present  

                                                                                                                                                                                                                              



                   34                 See Sokolowski v. Best W. Golden Lion Hotel                                                                                      , 813 P.2d 286, 292 (Alaska                              



 1991) (holding that worker was entitled to presumption of compensability on each                                                                                                                                                       

evidentiary question related to whether injury arose in course and scope                                                                                                                               of employment).   



                                                                                                                     -12-                                                                                                               7111
  


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

                                                                                                                         

substantial evidence that a cause other than the scratch played a greater role in causing  



                                                                                                                       

the  infection"  to  rebut  the  presumption.                        The  Board  examined  different  doctors'  



                                                                                                                         

testimony. It first considered Dr. Semler's testimony; according to theBoard, he "clearly  



                                                                                                                                

doubted the scratch occurred" but identified the "more likely medical explanation for the  



                                                                                                                                 

cause of the bacterial endocarditis [was] unknown."  The Board did not consider an  



                                                                                                                           

unknown cause to be "substantial evidence that a cause other than employment played  



                                                                                                                           

a greater role in causing the need for medical treatment."  Both Dr. Breall, the SIME  



                                                                                                               

cardiologist, and Dr. Leggett, theemployer'sinfectious-diseasespecialist, acknowledged  



                                                                                                                          

that a scratch like Huit described could be a portal of entry for the bacteria, but neither  



                                                                                                                                

doctor thought the scratch was more probably than not the substantial cause of the  



                                                                                                                           

endocarditis.   Both doctors said it was just as likely the bacteria had entered Huit's  



                                                                                                                               

bloodstream through another scratch or skin lesion, but neither doctor pointed to any  



                                                                                                                             

evidence that Huit had any such other problem. Again, the Board did not consider these  



                                                                                                                                   

doctors' opinions substantial evidence that a cause other than Huit's work "played a  



                                                                                                                  

greater role in causing [his] need for medical treatment." Finally, the Board summarized  



                                                                                                                                   

Dr. Riedo's testimony.  Dr. Riedo agreed with the other doctors that the scratch was a  



                                                                                                                                  

possible entry portal for the bacteria, but he thought the infection "was 'impossible to  



                                                                                                                    

attribute to a single event.'  "                 The Board  did  not consider this opinion substantial  



                                                                                                                                

evidence that could rebut the presumption because "if it is impossible to attribute the  



                                                                                                                        

infection to a single event, it cannot be attributed to a cause other than work."  



                                                                                                                          

                    The Board wrote that to rebut the presumption here, the employer needed  



                                                                                                                                

to produce more evidence than opinions that more likely than not, the scratch was not the  



                                                                                                                                

cause of the illness, because the doctors were unable to identify any other cause of the  



                                                                                                                           

illness.  The opinions all considered the cause to be unknown, even though they agreed  



                                                                                                                                

the bacteria somehow had to have entered Huit's bloodstream.  Because the Board did  



                                                                                                                         

not consider any of the doctors' opinions sufficient to rebut the presumption, it decided  



                                                               -13-                                                         7111
  


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

that Ashwater Burns had not met its burden at the second stage of the presumption                                                                                                                                                                                                                    



 analysis, making Huit's illness compensable.                                                                                                                                         



                                                      The Board then engaged in an alternative analysis, in which it assumed the                                                                                                                                                                                                             



 employer had rebutted the presumption. The Board gave the most weight to the opinions                                                                                                                                                                                                                                 



 of Drs. Bundtzen and Stevens, Huit's treating physicians. After again noting that several                                                                                                                                                                                                                                   



 doctors agreed the scratch was a possible entry point for the bacteria but doubted the                                                                                                                                                                                                                                                     



 existence of the scratch, the Board gave less weight to the opinions of Drs. Breall, Riedo,                                                                                                                                                                                                                                   



 Leggett,   and   Semler  because   they   "lacked   important,   credible   evidence   about   the  



 existence of the scratch." Based on the evidence and the weight assigned to it, the Board                                                                                                                                                                                                                                      



 concluded that Huit had proved by a preponderance of the evidence that his work injury                                                                                                                                                                                                                                          



was the substantial cause of the endocarditis.                                                                                                                                        



                                                     Ashwater Burns appealed to the Commission, which affirmed in part and                                                                                                                                                                                                                



reversed in part.                                                  The Commission agreed with the Board that Huit's claim was timely                                                                                                                                                                                           



 filed and that he had attached the presumption of compensability.                                                                                                                                                                                                              The Commission   



 disagreed with the Board's legal analysis related to rebutting the presumption, labeling                                                                                                                                                                                                                               



the Board's interpretation of the Commission's decision in  Runstrom v. Alaska Native  

                                                                 35        "a  narrow  reading"  that  was  nonetheless  "understandable,  given  

Medical   Center                                                                                                                                                                                                                                                                                                                



particular wording in that decision."  The Commission faulted the Board for requiring  

                                                                                                                                                                                                                                                                                                                   



the employer to produce substantial evidence that a cause other than employment was  



the  substantial  cause  of  Huit's  endocarditis.                                                                                                                                                      The  Commission  decided  that  the  

                                                                                                                                                                                                                                                                                                                                          



presumption could be rebutted "through the presentation of substantial evidence that  

                                                                                                                                                                                                                                                                                                                                         



work  was  not  the  substantial  cause  of  a  disability."                                                                                                                                                                    The  Commission  thought  the  

                                                                                                                                                                                                                                                                                                                                           



 evidence"ruled out what wasidentified as the one-and-onlypotential work-related cause  

                                                                                                                                                                                                                                                                                                                                   



                           35                        AWCAC   Dec.   No.   150   at   7   (Mar.   25,   2011)   (deciding   that   to   rebut  



presumption   of   compensability,   employer   should   show   "that   a   cause   other   than  

 employment played a greater role in causing the disability").                                                                                                                                    



                                                                                                                                                                     -14-                                                                                                                                                             7111
  


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

                                                                                                                              

of Huit's disability, namely the scratch."  It quoted Dr. Riedo's opinion that he did "not  



                                                                                                                                

believe on a more probable than not basis that the November 5, 2010 scratch was the  



                                                                                                                         

substantial cause" of the endocarditis.  Dr. Riedo did not think it was probable because  



                                                                                                                              

of "the lack of any skin lesion noted just three to four weeks after the scratch."  The  



                                                                                                                          

Commission also cited Dr. Breall's opinion that while it was possible that  the scratch  



                                                                                                                               

might have been the portal of entry, it was not probable.  The Commission thought that  



                                                                                                                 

these two opinions ruled out the scratch as the substantial cause of Huit's endocarditis,  



                                                                                                                                

so it reversed the Board's determination that Ashwater Burns had not rebutted the  



                                                  

presumption of compensability.  



                                                                                                                                      

                    The Commission also found fault with the Board's alternative analysis.  



                                                                                                                         

Specifically the Commission was "unable to identify an opinion from any of the medical  



                                                                                                                                

experts . . . that the scratch was, to a reasonable degree of medical probability, the  



                                                                                                                             

substantial cause of [Huit's] infection and endocarditis." The Commission thought there  



                                                                                                                                   

was "an insufficient connection between the evidence and the [B]oard's conclusion." It  



                                                                                                                                  

reversed  the  Board's  alternative  decision  that  Huit  had  proved  his  claim  by  a  



                                                                                                                    

preponderance of the evidence, and it remanded the case to the Board for "sufficient  



                                                                                                                

findings, based on the record from the hearing . . . that would enable [the Commission]  



                                                                     

to effectively review" the Board's decision.  



                                                                                                                                 

                    The Commission informed the parties that its decision was final as to its  



                                                                                                                              

"affirmation of the [B]oard's decision in part, reversal of the [B]oard's decision in part,  



                                                                                                                   

and vacating the [B]oard's decision in part."  It also said the decision was "non-final"  



                                                                                                                              

with respect to the "remand of the matter in part to the [B]oard."  The Commission then  



                                                                                                                       

notified the parties that the "final decision portion" of the decision became effective  



                                                                                                                                      

"when distributed" unless one of them filed a request for reconsideration or an appeal.  



                                                                                                                              

The Commission advised the parties they could petition this court for review of the non- 



                                        

final part of the decision.  



                                                               -15-                                                         7111
  


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

                               Huit appealed the part of the Commission's decision about rebutting the                                                                                          



presumption of compensability.                                             The parties jointly asked the Board to decide whether                                                     



 it had jurisdiction "to consider the portion of the case remanded to the [B]oard" in light                                                                                                  



 of the appeal to this court.                                  The Board decided that it had no jurisdiction over any part                                                                    



 of the case while an appeal was before this court.                                                                



 IV.            STANDARDS OF REVIEW                           



                               In    an    appeal   from    the    Alaska    Workers'    Compensation    Appeals  



                                                                                                                                                                         36  

 Commission, wereviewtheCommission'sdecision                                                                         rather than              theBoard's.                                  

                                                                                                                                                                               "Weapply  



                                                                                                                                                                                                   37  

                                                                                                                                                                                                         

 our independent judgment to questions of law that do not involve agency expertise." 



                                                                                                                                                                

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



                                                                                                           

judgment, interpreting a statute "according to reason, practicality, and common sense,  



                                                                                                                                                                                                

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



                       38  

purpose."                                                                                                                                                                                   

                            We do not mechanically apply the plain meaning rule but use a sliding scale  



                                                                                                                                                                                                 

 approach to statutory interpretation, in which "[t]he plainer the statutory language is, the  



                                                                                                                                                                                        39  

                                                                                                                                                                                              We  

more convincing the evidence of contrary legislative purpose or intent must be." 



                                                                                                                                                                                                 

reviewdenovo the Commission's legal conclusion that substantialevidencesupports the  



                36             Humphrey v. Lowe's Home Improvement Warehouse, Inc.                                                                                , 337 P.3d 1174,        



 1178 (Alaska 2014) (citing                                     Shehata v. Salvation Army                                      , 225 P.3d 1106, 1113 (Alaska                         

 2010)).  



                37             Monzulla v. Voorhees Concrete Cutting, 254 P.3d 341, 343 (Alaska 2011)  

                                                                                                                                                                                          

 (citing Barrington v. Alaska Commc'ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska  

                                                                                                                                                                                     

 2008)).  



                38             Louie v. BP Exploration (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014)  

                                                                                                                                                                                          

 (citing Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003)).  

                                                                                                                            



                39             Gov't Emps. Ins. Co. v. Graham-Gonzalez, 107 P.3d 279, 284 (Alaska  

                                                                                                                                                                                     

 2005) (quoting Muller v. BP Exploration (Alaska), Inc., 923 P.2d 783, 787-88 (Alaska  

                                                                                                                                                                                     

 1996)).  



                                                                                               -16-                                                                                        7111
  


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

Board's factual findings by "independently review[ing] the record and the Board's                                                             

 factual findings."             40  



V.	         DISCUSSION  



                                                                                                                                                        

            A.	          The Commission Decision Was Not A Final Decision For Purposes Of  

                                                                               

                        An Appeal As A Matter Of Right.  



                                                                                                                                                        

                         The Commission called its decision as to three issues "final" and gave the  



                                                                                                                                                       

parties notice that the "final" decision parts would take effect unless they appealed to this  



                                                                                                                                                        

 court.  Huit appealed the Commission's decision that Ashwater Burns had rebutted the  



                                                                                                                                                         

presumption  of  compensability.                                Under  the  rule  in  City  & Borough  of  Juneau  v.  



                                                                                                                                                          

 Thibodeau - a superior court decision remanding a case to an administrative agency is  



                                                                                                   41  

                                                                                                                                              

not a final judgment for purposes of appeal to this court                                             - the Commission's decision  



                                                                                                                                                  

would not be a final decision because the Commission remanded the case to the Board  



                                                  42 

                                                                                                       

 for further factual findings.                        We ordered the parties to provide supplemental briefing  



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



            41  

                                                                                                                                                          

                         595 P.2d 626, 629 (Alaska 1979), disavowed on other grounds by State v.  

Alex , 646 P.2d 203, 208 n.4 (Alaska 1982).                         



            42          As the Board correctly recognized, the remand required it to consider the  

                                                                                                                                                        

 same  underlying  issue  raised  in  this  appeal,  namely  the  compensability  of  Huit's  

                                                                                                                                                 

 endocarditis. The Commission's decision in this case was thus not akin to a partial final  

                                                                                                                                                     

judgment under Alaska Civil Rule 54(b), which permits a court to enter judgment "as to  

                                                                                                                                                          

 one or  more  but fewer  than all of the claims or  parties" when  multiple claims are  

                                                                                                                                                       

presented or multiple parties are involved.  Cf. Humphrey v. Lowe's Home Improvement  

                                                                                                                                      

 Warehouse,  Inc.,  337  P.3d  1174,  1178  n.5  (Alaska  2014)  (noting  severability  of  

                                                                                                                                                        

 attorney's fees dispute from other issues and comparing Commission decision there to  

                                                                                                                                                          

partial final judgment).  We have held that courts should sparingly apply Rule 54(b) to  

                                                                                                                                                          

 avoid piecemeal appeals, noting "the law's fundamental aversion" to those appeals.  

                                                                                                                                                               

Neese v. Lithia Chrysler Jeep of Anchorage, Inc., 210 P.3d 1213, 1223 (Alaska 2009)  

                                                        

 (citing Cole v. State Farm Ins. Co., 128 P.3d 171, 173 n.2 (Alaska 2006)).  The law is  

                                                  

 averse to piecemeal appeals in the administrative context as well.  

                                                                                                              



                                                                           -17-	                                                                   7111
  


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

on   Thibodeau's applicability to Commission decisions; we also invited the State to                                                                         



participate as amicus curiae, which the State did.                                          



                         Ashwater Burns and the State correctly observe that                                               Thibodeau  does not   



directly control when a Commission decision is final for purposes of appeal because                                                               

                                                                                                           43  and the Commission is an  

Thibodeau  concerned appeals from superior court orders                                                                                                     

administrative agency rather than a court.44   Huit and Ashwater Burns both contend that  

                                                                                                                                                          



policy  and  our  prior  cases  favor  extending  the  rule  in  Thibodeau  to  Commission  

                                                                                                                                         



decisions; they ask us to treat this case as a granted petition.  The State sets out several  

                                                                                                                                                    



alternatives for determining when a Commission decision is final for purposes of appeal,  

                                                                                                                                                    



but it takes no position as to the best one because of the many roles it has in the workers'  

                                                                                                                                                 



compensation process.  

                                            



                         Our analysis begins with the statute's language; AS 23.30.129(a) provides  

                                                                                                                                                 

in part:  "Consistent with AS 22.05.010(b),[45]  final decisions of the commission may be  

                                                                                                                                                             



appealed to the supreme court, and other orders may be reviewed by the supreme court  

                                                                                                                                                       



as provided by the Alaska Rules of Appellate Procedure." The legislature did not in this  

                                                                                                                                                           



statutory subsection delineate what a "final decision of the commission" is, although it  

                                                                                                                                                               



clearly envisioned a system in which some Commission decisions are final and others  

                                                                                                                                                     



are not. Alaska Statute23.30.128(e) requires the Commission to issue a written decision,  

                                                                                                                                                 



with specific features, within 90 days of the completion of briefing or oral argument in  

                                                                                                                                                             



an appeal fromthe Board; that written decision is called "the final commission decision."  

                                                                                                                                               



            43           595  P.2d  at  629.  



            44          Alaska  Pub.  Interest  Research  Grp.  v.  State,  167  P.3d  27,  47  (Alaska  2007).  



            45           AS  22.05.010(b)  grants  an  appeal  as  a  matter  of  right  to  this  court  "in  those  



actions  and  proceedings from  which  there  is  no  right  of  appeal"  to  either  the  court  of  

appeals  or  the  superior  court.    



                                                                            -18-                                                                       7111
  


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

                              One possible construction of the statute is to consider any decision having                                                                       



the characteristics set out in AS 23.30.128(e) a final decision for purposes of appeal.                                                                                                         



This construction would be in accordance with the presumption that the same word used                                                                                                

                                                                                                 46  and it would make the entire decision in  

twice in the same act has the same meaning,                                                                                                                                               



this case appealable as a matter of right.  But this construction is inconsistent with our  

                                                                                                                                                                            



precedent about the finality of administrative decisions for purposes of appeal to the  

                                                                                                                                                                                       

superior court47  and appears to be at odds with the Commission's normal practice when  

                                                                                                                                                                                   

remanding the entire case to the Board.48   Construing the two phrases as having the same  

                                                                                                                                                                                   



meaning would also be contrary to the rule of statutory construction that terms used in  

                                                                                                                                                                                          



statutes that have developed a specialized meaning through case law are presumed to  

                                                                                                                                                                                          

have that specialized meaning49  and the corollary that the legislature is aware of existing  

                                                                                                                                                                             

case law when it enacts or modifies the law.50  

                                                                                        



               46            ARCTEC Servs. v. Cummings                                          , 295 P.3d 916, 923 (Alaska 2013) (citing                                       



Fancyboy v. Alaska Vill. Elec. Coop., Inc.                                                   , 984 P.2d 1128, 1133 (Alaska 1999)).                               



               47            See, e.g., Ostman v. State, Commercial Fisheries Entry Comm'n, 678 P.2d  

                                                                                                                                                                                     

 1323, 1327-28 (Alaska 1984) (holding that administrative decision is final when litigant  

                                                                                                                                                                               

has no more opportunity to submit evidence or otherwise modify decision through  

                                                                                                                                                                            

administrative process).  

                                                       



               48            See, e.g., City &Borough of Juneau v. Olsen, AWCAC Dec. No. 184 at 20  

                                                                                                                                                                                         

(July 22, 2013); Titan Enters. v. State, Div. of Workers' Comp., AWCAC Dec. No. 175  

                                                                                                                                                                                      

at 22 (Jan. 8, 2013).  

                              



               49            Alaska Conservation Found. v. Pebble Ltd. P'ship , 350 P.3d 273, 281  

                                                                                                                                                                                     

(Alaska 2015) (citing Shea v. State, Dep't of Admin., Div. of Ret. & Benefits, 267 P.3d  

                                                                                                                                                                           

624, 633 n.33 (Alaska 2011)).  

                                                   



               50            See  Young  v.  Embley,  143  P.3d  936,  945  (Alaska  2006)  (stating  

                                                                                                                                                                            

presumption that legislature is aware of common law when enacting statutes); see also  

                                                                                                                                                                                     

Joseph v. State, 293 P.3d 488, 492 (Alaska App. 2012) ("[T]he legislature is presumed  

                                                                                                                                                                         

                                                                                                                                                                 (continued...)  



                                                                                           -19-                                                                                    7111
  


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

                      We have held that the test for finality for purposes of judicial review of                                               



                                                                                               51  

administrative decisions "is essentially a practical one"                                                                                    

                                                                                                   that considers "whether the  



                                                                                                                                      

agency has completed itsdecisionmaking process[] and whether the result of that process  

                                                                     52  We have instructed that in deciding whether  

                                                                                                                                     

                                                        

is one that will directly affect the parties." 



an agency decision is final for judicial review, the superior court should "focus primarily  

                                                                                                                                   

on the operational or 'decretal' language" in the decision.53                                            The inquiry should also  

                                                                                                                                           



consider whether the litigants still have an opportunity "to submit evidence or alter the  

                                                                                                                                             

decision through administrative means."54                               Because the Commission is a quasi-judicial  

                                                                                                                            



agency, we assume the legislature was aware of cases defining an agency decision's  

                                                                                                                                 

finality for purposes of judicial review when it enacted AS 23.30.12955 and intended a  

                                                                             



"final" decision in that section to have the same meaning.  

                                                                                  



           50          (...continued)  



                                                                                                                                            

to be aware of pertinent court decisions when it amends a statute."  (citing Shea, 267  

                     

P.3d at 633 n.33)).  



           51          Crawford  &  Co.  v.  Baker-Withrow,  81  P.3d  982,  985  (Alaska  2003)  

                                                                                                                                        

(quoting Matanuska Maid, Inc. v. State, 620 P.2d 182, 184 (Alaska 1980)).  

                                                                                                                   



           52         Id. (quoting State, Dep't of Fish & Game, Sport Fish Div. v. Meyer, 906  

                                                                                                                                            

P.2d       1365,        1370        (Alaska   1995),   superseded   by   statute   on                                 other       grounds,  

                                                                                                                                 

AS 18.80.112(b)).  

       



           53          Ostman v. State, Commercial Fisheries Entry Comm'n, 678 P.2d 1323,  

                                                                                                                                        

1327 (Alaska 1984) (quoting Greater Anchorage Area Borough v. City of Anchorage,  

                                                                                     

504 P.2d 1027, 1030-31 (Alaska 1972), overruled on other grounds by City & Borough  

                                                                                                                                    

of Juneau v. Thibodeau, 529 P.2d 626, 628-30 (Alaska 1979)).  

                                                                                               



           54         Allen v. State, Dep't of Revenue, Child Support Enf't Div. , 15 P.3d 743, 747  

                                                                                                                                            

(Alaska 2000) (quoting Meyer, 906 P.2d at 1371).  

                                                                          



           55         See Young, 143 P.3d at 945.  

                                                               



                                                                     -20-                                                                7111
  


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

                             Two agencies are involved in the administrative process of a workers'                                                                     



 compensation decision rather than one, but they are integrally related, with Commission                                                                        

                                                                                                                  56  And while the Commission may  

 decisions serving as legal                            precedent for both agencies.                                                                                               



 complete its decision-making process in cases like this one, when it remands the case to  

                                                                                                                                                                                       

the Board without retaining jurisdiction,57   the entire administrative decision-making  

                                                                                                                                                       



process is not complete if the remand permits further Board action that could change the  

                                                                                                                                                                                     



 case's outcome. On remand the parties here would have had the opportunity to alter the  

                                                                                                                                                                                     



 decision  through  administrative  means,  either  through  argument  or  presentation  of  

                                                                                                                                                                                      



 additional evidence if the Board considered that necessary. As the Board recognized, the  

                                                                                                                                                                                     



remand considered essentially the same underlying issue that this appeal does.   The  

                                                                                                                                                                                  



 decretal language here contemplated further administrative proceedings by remanding  

                                                                                                  



 so the Board could make further findings.  Thus under our precedent the case was not a  

                                                                                                                                                                                         



 final administrative decision for purposes of judicial review.  

                                                                                                                   



                             Construing  "final  decision  of  the  commission"  in  AS  23.30.129(a)  as  

                                                                                                                                                                                      



 equivalent to a "final commission decision" in AS 23.30.128(e) would permit appeals  

                                                                                                                                                                           



 as a matter of right in cases that do not meet our precedents' finality test and have not in  

                                                                                                                                                                                       



the past been labeled "final" by the Commission.  A case remanded on all issues to the  

                                                                                                                                                                                     



 Board is not "final" for purposes of judicial review because on remand the parties might  

                                                                                                                                                                               



present evidence and make arguments that could change the decision. The Commission  

                                                                                                                                                                



               56            See Alaska Pub. Interest Research Grp. v. State                                                        , 167 P.3d 27, 45 (Alaska              



 2007) (construing statutory provision that Commission decisions have force of legal                                                                                             

precedent unless reversed by this court).                                 



               57            The Commission may retain jurisdiction when it remands a case to the  

                                                                                                                                                                                    

 Board.  AS 23.30.128(d).  No one questioned the Commission's decision not to retain  

                                                                            

jurisdiction in this case.  

                                          



                                                                                         -21-                                                                                   7111
  


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

                                                                                                  58  

has not treated such cases as "final,"                                                                 yet they meet the criteria of AS 23.30.128(e) as   



 long as they are in writing and contain the features set out in that subsection.                                                                                                                               



                                    Conversely, construing these phrases in the same manner could exclude                                                                                                          



 decisions that meet our precedents' finality test. Alaska Statute 23.30.128(e) ties finality                                                                                                                        



to theCommission's resolution                                                      ofthemerits appeal; a "final commission decision"is one                                                                                     



the Commission issues after "briefing on the appeal is completed or oral argument is                                                                                                                                               



held." But the Commission awards attorney's fees under AS 23.30.008(d) as part of the                                                                                                                                            

                                                                                                   59  so a decision about attorney's fees might never  

merits appeal, not as a separate case,                                                                                                        

be "final" as the term is used in subsection .128(e).60                                                                                              The Commission has not been  

                                                                                                                                                                                                                           



 consistent in giving notice of appeal rights in its decisions about fees.  In one case it  

                                                                                                                                                                                                                                    

 labeled a fee order "final" and gave the parties notice of their right to appeal;61 in another  

                                                                                                                                                                                                                    



 case, it called its decision a "memorandum" decision and gave no notice to the parties  

                                                                                                                                                                          

 about finality or any appeal rights, even through discretionary review.62  We conclude  

                                                                                                                                                                         



                  58                See, e.g.             ,  City &Borough of Juneau v. Olsen                                                             , AWCAC Dec. No. 184 at 20                                              



 (July 22, 2013);                           Titan Enters. v. State, Div. of Workers' Comp.                                                                             , AWCAC Dec. No. 175                                   

 at 22 (Jan. 8, 2013).               



                  59                See, e.g., Shehata v. Salvation Army, AWCAC Dec. No. 075 (Mar. 19,  

                                                                                                                                                                                                                               

2008) (attorney's fees decision in AWCAC Appeal No. 07-021); Shehata v. Salvation  

                                                                                                                                                                                                               

Army, AWCAC Dec. No. 063 (Dec. 20, 2007) (merits decision in AWCAC Appeal No.  

                                                                                                                                                                                                                               

 07-021).  



                  60                The  Commission  at  times  has  treated  its  attorney's  fees  decisions  as  

                                                                                                                                                                                                                                 

nonfinal.  See Adamson v. Municipality of Anchorage, AWCAC Appeal No. 11-017,  

                                                                                                                                                                                                                   

 Order  on  Motion  for  Reconsideration  (AWCAC  Order,  Nov.  19,  2014)  (denying  

                                                                                                                                                                                                               

reconsideration of attorney's fees decision because it was not a final decision but a  

                                                                                                                                                                                                                         

memorandum decision), filed in Adamson v. Municipality of Anchorage , S-15753.  

                                                                                                                                                                                                     



                  61                See Shehata, AWCAC Dec. No. 075 at 11-12.  

                                                                                                                                               



                  62                See Adamson v. Municipality of Anchorage , AWCAC Dec. No. 203 at 5  

                                                                                                                                                                                                                                     

                                                                                                                                                                                                    (continued...)  



                                                                                                               -22-                                                                                                        7111
  


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

that the terms used in AS 23.30.128(e) and AS 23.30.129(a) are not equivalent. Finality                                                                                                                                     



for the Commission's purposes can be distinct from finality for purposes of judicial                                                                                                                                        



review; as the judicial body reviewing the Commission's administrative decisions, we   



will decide whether a Commission decision is final for purposes of judicial review by                                                                                                                                                      



applying prior case law.                                



                                      Our construction of the statute is consistent with the limited legislative                                                                                                     



history concerning the Commission.                                                                     As we have observed previously, the legislature's                                                        



goals    in   creating    the    Commission    were    to    make    the    workers'    compensation  

                                                                                                                                                                       63          Applying  the  rule  in  

administrative   process   more   expeditious   and   consistent.                                                                                                                                                                         



 Thibodeau to Commission decisions furthers these goals by permitting discretionary  

                                                                                                                                                                             



review by this court when a case presents an important legal question but allowing the  

                                                                                                                                                                                                                                         



administrative process to come to completion prior to an appeal as a matter of right. We  

                                                                                                                                                                                                                                        



also have noted that the legislature wanted litigants appealing to the Commission to  

                                                                                                                                                                                                                                            

                                                                                                                                                                                                                               64      The  

retain "the same procedural rights of review that they had in the superior court."                                                                                                                                                    

                                                                                                                                                                                                            



rule  in  Thibodeau provides  parties  in  the  workers'  compensation  system  the  same  

                                                                                                                                                                                                                                   



process that existed prior to 2005; it also provides, as the State puts it, "an attractive  

                                                                                                                                                                                                                        



symmetry," making the process more consistent with that of other agency appeals and  

                                                                                                                                                                                                                 



thus  easier  for  unrepresented  parties  to  follow.                                                                                              Applying  Thibodeau  also  limits  

                                                                                                                                                                                                                                 

piecemeal appeals65   and permits complete development of the agency record before  

                                                                                                                                                                                                                               



                   62                 (...continued)  



(Nov.   12,  2014).   



                   63                Alaska  Pub.  Interest  Research  Grp.  v.  State,  167  P.3d  27,  39  (Alaska  2007).  



                   64                Monzulla  v.  Voorhees  Concrete  Cutting,  254  P.3d  341,  347  (Alaska  2011).  



                   65                See  Neese  v.  Lithia  Chrysler  Jeep  of  Anchorage,  Inc.,  210  P.3d  1213,  1223  



(Alaska  2009)  (discussing  policy  against  piecemeal  review  of  cases).  



                                                                                                                   -23-                                                                                                             7111
  


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

                              66  

judicial review.                   Thibodeau  allows a party to preserve legal issues decided throughout                                            

the case for review by this court after completion of the administrative process.                                                                         67  



                          We  are  mindful  that  Commission  decisions  have  the  force  of  legal  

                                                                                                                                                              

                                                                                                                                                              68  the  

precedent for both the Board and the Commission unless reversed by this court;                                                                                     

                                                                                                                                                   



 State pointed to this feature of the statutory scheme as one policy consideration weighing  

                                                                                                                                                       



 against application of Thibodeau to Commission decisions. Parties to an appeal like this  

                                                                                                                                                                  



 one, involving an important question of law and its application to the case, can petition  

                                                                                                                                                          



 for review of a Commission decision if they are concerned about the Commission's legal  

                                                                                                                                                                

 analysis.69            And  the  legislature  both  provided  a  mechanism for  the  director  of  the  

                                                                                                                                                                  



Division ofWorkers' Compensationtoappealin Commission proceedings andpermitted  

                                                                                                                                                       



the Division's director to appeal a compensation order to the Commission when a party  

                                                                                                                                                               



                                                                                                                                                                     70  

 in interest is not represented and the order "concerns an unsettled question of law."                                                                                    

                                                                                                                                                           



 These procedures should adequately protect against the risk that a legally erroneous  

                                                                                                                                                     



 Commission decision would taint numerous cases.  

                                                                                        



                          In light of the Commission's notice to the parties here about their appeal  

                                                                                                                                                            



rights, Huit understandably appealed the Commission's decision that Ashwater Burns  

                                                                                                                                                             



rebutted the presumption.  Under the rule we adopt today, he did not have an appeal as  

                                                                                                                                                                     



 of right.  But because this case involves an important question of law and immediate  

                                                                                                                                                    



             66            Cf. Interior Paint Co. v. Rodgers                                , 522 P.2d 164, 169 n.7 (Alaska 1974)                            



 (adopting rule that judicial review is limited to agency record).                                          



             67           595  P.2d  626,  631  (Alaska   1979).  



             68           AS  23.30.008(a);  Alaska  Pub.  Interest  Research  Grp.,   167  P.3d  at  45.  



             69           AS  23.30.129(a);  Alaska  R.  App.  P.  402;  Thibodeau,  595  P.2d  at  631.  



             70           AS  23.30.127(a).  



                                                                                -24-                                                                           7111
  


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

                                                                                                            71  

review   will   materially   advance   the   termination   of   the   litigation,                               we   follow   our  



                                                                                  72  

precedent to treat the appeal as a petition for review                                                

                                                                                      and grant it.  



                                                                                                                          

           B.	       The Commission Erred In Deciding That Ashwater Burns Rebutted  

                                                          

                     The Presumption Of Compensability.  



                                                                                                                                     

                     The Commission reversed the Board's decision at the second stage of the  



                                                                                                                                       

presumption analysis and decided that Ashwater Burns had rebutted the presumption of  



                                                                                                                                   

compensability.                The   Commission   thought   the   Board's   interpretation   of   the  



                                                                                                                                    

Commission's prior decisions was unduly "narrow" and wrote that "the presumption can  



                                                                                                                                    

be rebutted through the presentation of substantial  evidence that work was not the  



                                                                                                                                

substantial cause of a disability." The Commission explained that the question the Board  



                                                                                                                      

needed to consider was "whether the medical evidence in this case ruled out employment  



                                       

as the substantial cause of Huit's infection and endocarditis."  Focusing on statements  



                                                                                                                            

in the SIME physicians' reports, the Commission decided Ashwater Burns had provided  



                                                                                                                             

substantial evidence to rebut the presumption.  The Commission relied on Dr. Breall's  



                                                                                                                                    

opinion that he could not say "there was 'a reasonable medical degree of probability' that  



                                                                                                      

the  scratch"  caused  Huit's  infection,  even  though  Dr.  Breall  acknowledged  it  was  



                                                                                                                              

possible  the  scratch  could  have  been  where  the  staph  bacteria  entered  Huit's  



                                                                                                                         

bloodstream. It also quoted Dr. Riedo's opinion that "[w]hile it is medically reasonable  



                                                                                                                                     

that a scratch as described by Mr. Huit can cause this illness, it is possible but again not  



                                                                                                                                     

probable" because no skin lesions had been documented three to four weeks after the  



               

scratch.  



                                                                                                                                      

                     Huit argues that the presumption analysis as applied to his injury should be  



                                                                                                                                       

no different from the presumption analysis before the 2005 statutory changes, set out in  



           71        See  Alaska  R.  App.  P.  402(b)(2).  



           72        See,  e.g.,  Thoeni  v.  Consumer  Elec.  Serv.,  151  P.3d  1249,  1253-54  (Alaska  



2007).  



                                                                 -25-                                                                7111  


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

Section II.B.1, because the legislative changes were meant to apply to claims where a                                                                                                                                                         



work injury aggravated a preexisting condition or injury and he had none. He maintains                                                                                                                                



that because there is no cause with which to compare the work-related scratch, Ashwater                                                                                                                                



Burns did not rebut the presumption because it could not rule work out as his infection's                                                                                                                          



cause; in fact, the doctors all agreed the scratch was a possible entry point for the bacteria                                                                                                                             



that caused the infection.                                              



                                     Ashwater Burns contends the Commission correctly decided that medical                                                                                                                 



opinions in the record rebutted the presumption and that to decide otherwise would                                                                                                                                            



createan                 irrebuttablepresumption. It                                                asserts that becausethestatutenowunambiguously                                                    



provides   that   compensation  is   payable   only   when,   in   relation   to   other   causes,  

                                                                                                          73  of a disability or need for medical treatment, at  

employment is "the substantial cause"                                                                                                                                                                                                       



the second stage it only needed to provide an expert opinion that the scratch was not the  

                                                                                                                                                                                                                                         



substantial cause of the infection.  

                                                                                                



                                     As stated previously, we have yet to construe the 2005 amendments to the  

                                                                                                                                                                                                                                         



Alaska Workers' Compensation Act as they relate to the presumption analysis. The only  

                                                                                                                                                                                                                                     



part of the presumption analysis at issue in this appeal is the second stage:  Ashwater  

                                                                                                                                                                                                                     



Burns does not contest that Huit attached the presumption, and Huit did not ask us to  

                                                                                                                                                                                                                                           



review the Commission's decision about the third stage.  

                                                                                                                                                              



                                     Under the pre-2005 analysis the employer could rebut the presumption of  

                                                                                                                                                                                                                                           



work-relatedness  by  presenting  substantial  evidence  that  either  (1)  provided  an  

                                                                                                                                                                                                                                        



alternative explanation that would exclude work-related factors as a substantial cause of  

                                                                                                                                                                                                                                           



the disability, or (2) directly eliminated any reasonable possibility that employment was  

                                                                                                                                                                                                                                      



                   73  

                                                

                                     AS 23.30.010(a).  



                                                                                                                   -26-                                                                                                                       7111  


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

                                                            74  

a   factor   in   causing   the   disability.                      An   employer   could   rebut   the   presumption  by  



presenting a qualified expert's opinion testimony that the claimant's work was probably                                               

                                                                         75     That  opinion  had  to  be  supported  by  

not   a   substantial   cause   of   the   disability.                                                                                          



                                    76  

substantial evidence.                   

                    



                       With respect to the second stage, AS 23.30.010(a) now provides that the  

                                                                                                                                                



"presumption may be rebutted by a demonstration of substantial evidence that the death  

                                                                                                                                            



or disability or the need for medical treatment did not arise out of and in the course of  

                                                                                                                                     

the employment."77   It then instructs:  "When determining whether or not the death or  

                                                                                                                                                  



disability or need for medical treatment arose out of and in the course of the employment,  

                                                                                                                               



the [B]oard must evaluate the relative contribution of different causes of the disability  

                                                                                                                                     



or death or the need for medical treatment."  

                                                         



                       We begin our analysis by examining the statutory language. The statutory  

                                                                                                                                       



language does not require the Board to determine or even consider "the substantial  

                                                                                                                                  



cause" at the second stage of the presumption analysis, but it does require the Board to  

                                                                                                                                                  



"evaluate the relative contribution of different causes" in deciding whether the disability  

                                                                                                                                      



arose out of and in the course of employment.  Here no other cause was identified as  

                                                                                                                                                 



contributing  to  Huit's infection,  so  the Board  did not need to evaluate the relative  

                                                                                                                                        



            74         Tolbert   v.   Alascom,   Inc.,  973   P.2d   603,   611   (Alaska   1999)   (quoting  



 Williams v. State, Dep't of Revenue                         , 938 P.2d 1065, 1072 (Alaska 1997)).                 



            75         Bradbury v. Chugach Elec. Ass'n, 71 P.3d 901, 906 (Alaska 2003) (citing  

                                                                                                                                          

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

                                                                                             



            76         Safeway, Inc. v. Mackey, 965 P.2d 22, 27-28 (Alaska 1998).  

                                                                                                                    



            77         AS 23.30.395(2) defines "arising out of and in the course of employment"  

                                                                                                                              

as including "activities performed at the direction or under the control of the employer."  

                                                                                                                                                       

No one disputes that Huit was engaged in work-related activities when he scratched  

                                                                                                                                     

himself on the vanity, so this work-relationship aspect is not at issue.  

                                                                                                              



                                                                       -27-                                                                 7111
  


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

contribution of different causes to the infection. The Board nonetheless was required to                                                                       



consider whetherAshwaterBurns                                  had provided"ademonstrationofsubstantial evidence                                  



that the . . . disability or the need for medical treatment did not arise out of and in the                                                                 

course of the employment."                          78  



                         Ashwater Burns maintains that it did so through medical opinions that, on  

                                                                                                                                                             



a more probable than not basis, the scratch was not the substantial cause of the disability.  

                                                                                                                                                                    



But the statute does not instruct the Board to make the determination of "the substantial  

                                                                                                                                              



cause" at the rebuttal stage.  And at no point does the statute explicitly equate "aris[ing]  

                                                                                                                                                

out of and in the course of employment" with "the substantial cause."79                                                                     While both  

                                                                                                                                                         

phrases are prerequisites for receiving workers' compensation,80   they could be two  

                                                                                                                                                          



independent conditions rather than one, equivalent condition.  We thus disagree with  

                                                                                                                                                         



Ashwater Burns's contention that the statutory language in this regard is not ambiguous.  

                                                                                                                                                                    



To resolve the ambiguity, we examine the legislative history to consider the degree to  

                                                                                                                                                              



which the legislature intended to modify the presumption analysis developed under the  

                                                                                                                                                            



prior causation standard.  

                              



                         As Ashwater Burns points out, "the substantial cause" as a standard for  

                                                                                                                                                            



awarding compensation originated with the legislature's desire to limit aggravation  

                                                                                                                                           



claims. One principal reason the governor cited for proposing the 2005 Alaska Workers'  

                                                                                                                                                 



Compensation  Act  amendments  was  "increasing  costs  of  maintaining  the  current  

                                                                                                                                                    



             78          AS  23.30.010(a).  



             79          Id.  



             80          The  first  sentence  of  AS  23.30.010(a)  establishes  that  "compensation  or  



benefits  are  payable  under  this  chapter  for  disability  .  .  .  if  the  disability  .  .  .  arose  out  of  

and   in  the   course   of  the   employment,"   and  the   last  provides  that   "[c]ompensation   or  

benefits  under  this  chapter  are  payable  for  the  disability  .  .  .  if,  in  relation  to  other  causes,  

the  employment  is  the  substantial  cause  of  the  disability  .  .  .  ."  



                                                                             -28-                                                                       7111
  


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

                  81  

system."               The legislature considered limiting the compensability of aggravation claims                                                                   



                                                                                    82  

as a means of reducing insurance costs.                                                                                                                         

                                                                                          The Senate Judiciary Committee proposed  



                                                                                                                                                                         

added language that would have narrowed the definition of "injury" to exclude from  



                                                                                                                                                               

coverage an "aggravation, acceleration or combination with a preexisting condition  



                                                                                                                                                                             

unless the employment [was] the major contributing cause of disability or need for  

                                         83   According to Paul Lisankie, then the Director of the Division of  

                                                                                                                                                                               

medical treatment." 



Workers'Compensation, "themajor contributing cause"would bethepredominantcause  

                                                                                                                                                                         

of the disability, or at least a 51% cause.84                                               He indicated that "the major contributing  

                                                                                                                                                          



cause" standard was meant to establish a "higher standard" for compensability than the  

                                                                                                                                                                             

current law and that it was derived from Oregon law.85  

                                                                                                      



                            The House Labor and Commerce Committee removed this definition of  

                                                                                                                                                                               

                  86 but the change in defining "injury" was reinserted in the bill's first conference  

"injury,"                                                                                                                                                    



              81            2005 Senate Journal 465.                    



              82            See  Minutes, Sen. Judiciary Comm. Hearing on S.B. 130, 24th Leg., 1st                                                                           



Sess. 10:38-10:42(Apr. 7, 2005) (testimony ofPaul Lisankie, Director, Div. of Workers'  

                                                                                                                                                                

Comp.) (testifying that the "impetus" of the amendment excluding some aggravation                                                                          

claims was "decreasing the cost of insurance premiums").                                       



              83           Id.  (amendment  proposed  by  Chair  Seekins  and  moved  by  Senator  

                                                                                                                                                                  

Huggins).  



              84            Testimony of Paul Lisankie, Director, Div. of Workers' Comp. at 10:37- 

                                                          

 10:42, Hearing on S.B. 130 Before the Sen. Judiciary Comm., 24th Leg., 1st Sess.  

                                                                                                                                                                        

(Apr. 7, 2005).  

                                 



              85           Id. at 10:41:08-10:41:17.  

                                                                                  



              86            H.C.S. C.S.S.B. 130 (L&C), 24th Leg., 1st Sess. (May 5, 2005).  

                                                                                                                                                    



                                                                                     -29-                                                                                7111
  


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

                              87  

committee version.                The House did not adopt the conference committee version of the                                   



      88  

bill.                                                                                                                               

             In  the  Free  Conference  Committee,  Senator  Gene  Therriault  proposed  an  



                                                                                                                

amendment specifically providing that compensation was not payable for aggravation  



                                                                                                                                  

claims unless employment was "the major contributing cause" of the disability; that  



                             89  

                    

amendment failed. 



                     Senator  Therriault  then  proposed  an  amendment  that  established  the  

                                                                                                                                   

languageofAS23.30.010.90  Senator Therriaultindicated theamendment'slanguagewas  

                                                                                                                                   



developed  with  Assistant  Attorney  General  Kristin  Knudsen,  who  spoke  to  the  

                                                                                                                                   

committee about the bill.91  Knudsen testified that the language about the operation of the  

                                                                                                                                    



presumption was derived from prior cases and was not intended to change the way the  

                                                                                                                                    

presumption  analysis  operated.92                        She  identified  both  tests  in  prior  case  law  for  

                                                                                                                                   

                                              93  and she indicated, in response to Senator Hollis French,  

overcoming the presumption,                                                                                                  

                          



           87        C.C.S.  S.B.   130,  24th  Leg.,   1st  Sess.  (May   13,  2005).  



           88        2005  House  Journal  2042-44.  



           89        Minutes,  H.  Free  Conference  Comm.  Hearing  on  S.B.   130,  24th  Leg.,   1st  



Spec.  Sess.  5:40-5:42,  9:12-9:28  (May  20,  2005).   



           90        Minutes,  H.  Free  Conference  Comm.  Hearing  on  S.B.   130,  24th  Leg.,   1st  



Spec.  Sess.   1:18-1:19  (May  21,  2005)  (statement  of  Sen.  Gene  Therriault).   



           91        Statement of Sen. Gene Therriault at 1:19:20-1:20, Hearing on S.B. 130  

                                                                                                                                   

Before the H. Free Conference Comm., 24th Leg., 1st Spec. Sess. (May 21, 2005).  

                                                                                                                        



           92        Testimony of Kristin Knudsen, Assistant Att'y Gen. at  1:25-1:26, 1:38- 

                                                                                                                                

1:39, Hearing on S.B. 130 Before the H. Free Conference Comm., 24th Leg., 1st Spec.  

                                                                                                                                

Sess. (May 21, 2005).  

                         



           93        Minutes, H. Free Conference Comm. Hearing on S.B. 130, 24th Leg., 1st  

                                                                                                                                    

Spec. Sess. 1:35-1:39 (May 21, 2005) (testimony of Kristin Knudsen, Assistant Att'y  

                                                                                                                                

Gen.)  (stating  that  the  employer's  burden  is  "unchanged"  and  the  employer  "must  

                                                                                                                               

                                                                                                                   (continued...)  



                                                                 -30-                                                           7111
  


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

that   the   language   up   through   the   last   line   -   in   other   words,   the   language   about  



application of the presumption analysis - was "not intended in any way to restrict or                                                   



                                                                                  94 

                                                                                                              

change the current standard for work relationship."                                    Knudsen and Senator Therriault  



                                                                                                                                      

both  told  committee  members  that  the  language  about  attaching  and  rebutting  the  



                                                                            95  

                                                                                                                          

presumption  was  derived  from  our  case  law,                                 and  comments  of  some  committee  



                                                                                                                                      

members  indicate  they  understood  the  amendment  as  codifying  the  standards  for  



                                                                     96  

                                                                                                                             

attaching  and  rebutting  the  presumption.                                The  legislative  history  thus  suggests  



                                                                                                                                       

application of the presumption analysis was to remain intact; there is no indication the  



                                                                                                                                     

legislature  intended  to  change  the  manner  in  which  an  employer  rebutted  the  



presumption.  



                                                                                                                    

                      Based  on  the  legislative  history  we  conclude  that  the  Commission's  



                                                                                                                                      

interpretation of the statute as abrogating the negative-evidence test from prior case law  



                        97                                                                                                              98  

                                                                                                                                             

was erroneous,              and we overrule that part of the Commission's Runstrom decision. 



                                                                                                                                          

We agree with the Commission's earlier observation that an opinion establishing that a  



           93         (...continued)  



                                                                                                                                        

eliminate  the  possibility  of  a  work  relationship  or  must  point  to  the  way  [sic]  to  

                                                 

overcome the presumption").  



           94        Id.  at   1:44-1:46.   



           95        Id.  at   1:35-1:42.   



           96        Id.  at   1:35-1:50  (statements  of  Sen.  Gene  Therriault,  Sen.  Hollis  French,  



and  Rep.  Eric  Croft,  and  testimony  of  Kristen  Knudson,  Assistant  Att'y  Gen.).  



           97        See supra text accompanying notes  15-16.  

                                                                                



           98         We affirmed the Commission's decision in Runstrom because the result in  

                                                                                                                                         

that case was the same no matter how the statute was interpreted.  Runstrom v. Alaska  

                                                                                                                             

Native Med. Ctr., 280 P.3d 567, 573 (Alaska 2012).  We nonetheless made clear that we  

                                                                                                                                       

considered the interpretation of AS 23.30.010(a) an "open question."  Id. at 573 n.16.  

                                                                                                                                  



                                                                  -31-                                                             7111
  


----------------------- Page 32-----------------------

cause is not          a  substantial factor of the disability rebuts the presumption using either "a                                                   



substantial factor" or "the substantial cause" as a standard because something cannot be                                                               

                                                                                                                      99    We observe that  

"the substantial cause" of a disability if it is not a cause at all.                                                                                



elimination of the negative-evidence test arguably made it harder for an employer to  

                                                                                                                                                       



rebut the presumption in those cases of medical uncertainty in which the underlying  

                                                                                                                                       

condition is poorly understood.100  

                                                              



                        We  next  consider  whether  Ashwater  Burns's  evidence  met  either  the  

                                                                                                                                                     



affirmative-evidence test or the negative-evidence test. Because therewas no competing  

                                                                                                                                         



cause in this case, we do not consider how the presumption analysis should be applied  

                                                                                                                                              



when another possible cause, such as a prior injury, contributed to the disability.  We  

                                                                                                                                                     



agree with Huit that when there is no competing cause, the standard for rebutting the  

                                                                                                                                                     



presumption is essentially unchanged from prior cases:  the requirement in subsection  

                                                                                                                                        



.010(a) that the Board "evaluate the relative contribution of different causes" when  

                                                                                                                                                 



assessing work-relatedness presupposes the identification of more than one cause.  

                                                                                                                                                     



                        Under the amended statute, rebutting the presumption required Ashwater  

                                                                                                                                          



Burns to show that Huit's infection did not arise out of his employment.  On the facts of  

                                                                                                                                                        



this case, to do this, Ashwater Burns needed to show that the work-related scratch could  

                                                                                                                                                 



not have caused the infection (the negative-evidence  test)  or another source of the  

                                                                                                                                                     



bacteria caused the infection (the affirmative-evidence test).   It argues that because  

                                                                                                                                            



experts  gave  the  opinion  that  work  was  probably  not  the  substantial  cause  of  the  

                                                                                                                                                     



            99          State,  Dep't  of  Corr.  v.  Dennis,  AWCAC  Dec.  No.  036  at  10  n.26  (Mar.  27,  



2007).  



            100         See  Safeway, Inc.  v.  Mackey,   965  P.2d  22,  28   (Alaska   1998)   (affirming  



Board  decision  that  employer  rebutted  the  presumption  when  employer's  expert  refuted  

the  employee's theory  of causation by testifying that no relationship had been established  

between  the  alleged  injury  mechanism  and  the  employee's  medical  condition).  



                                                                          -32-                                                                    7111
  


----------------------- Page 33-----------------------

disability it provided this evidence. But, as we said in                                             Safeway, Inc. v. Mackey                      , "merely   



reciting   the   proper   words  as  an  opinion   is   not   necessarily   enough   to   rebut   the  



presumption ofcompensability,becausetheemployer mustprovide                                                                  substantialevidence   



                                                                             101  

that the disability was not work-related."                                          



                         Considering first the negative-evidence test, we conclude that the doctors'  

                                                                                                                                                     



opinions do not meet this test; they do not show that the work-related scratch could not  

                                                                                                                                                              



have been the entry point for the bacteria that caused the infection.  In fact the experts  

                                                                                                                                       



indicated that bacteria can enter the bloodstream through minor scratches like one Huit  

                                                                                                                                                            



described, and Ashwater Burns conceded at oral argument before us that the scratch was  

                                                                                                                                                             

a possible entry point for the bacteria.102                                   Moreover the Commission cited the opinions  

                                                                                                                                                    



of Drs. Breall and Riedo to support its determination that Huit attached the presumption.  

                                                                                                                                           



                         The doctors' opinions here are distinct from the negative evidence offered  

                                                                                                                                                       

to rebut the presumption in Norcon, Inc. v. Alaska Workers' Compensation Board103 and  

                                                                                                                                                             

                                               104  two cases on which Ashwater Burns relies.  In both Norcon  

Safeway, Inc. v. Mackey,                                                                                                                              

                               



and Mackey, the employee established a causal connection, but it was eliminated by  

                                                                                                                                                               



expert-opinion testimony that no relationship existed between the alleged cause and the  

                                                                                                                                                              



disability.  In Norcon, where long hours and their resulting stress allegedly caused a  

                                                                                                                                                                  



worker's ventricular fibrillation and resulting death, a doctor rebutted the alleged causal  

                                                                                                                                                        



connection by testifying that working long hours "is not recognized to be a risk factor  

                                                                                                                                             



             101         Id.  at 27-28 (emphasis in original) (citing                                    Big K Grocery v. Gibson                          , 836   



P.2d 941, 942 (Alaska 1992)).               



             102         Ashwater Burns also agreed that thebacteria'sbeingpresentonHuit's skin,  

                                                                                                                                                           

as  opposed  to  being  present  on  the  drywall  screw,  was  irrelevant  for  purposes  of  

                                                                                                                                                               

determining work-relatedness.  

                                                           



             103         880 P.2d 1051 (Alaska 1994).  

                                                                       



             104         965 P.2d 22 (Alaska 1998).  

                                                                  



                                                                              -33-                                                                        7111
  


----------------------- Page 34-----------------------

for sudden cardiac death" and that there was no reasonable possibility "that the two are                                                        



               105  

related."                                                                                                                           

                     And in Mackey, where the worker alleged that her fibromyalgia developed  



                                                                                                                                   

fromearlier work-related injuries and repetitivestress, werecognizedthattheemployer's  



                                                                                                                                         

doctor "testified that trauma and the development of fibromyalgia have not been reliably  



                                                                                                                                              

related" and "rebutted the theories that [the claimant's doctor] presented to link [the  

                                                                       106  In contrast the experts here indicated that  

claimant's] work with her fibromyalgia."                                                         



a scratch like the one Huit described could be an entry point. Because they did not rebut  

                                                                                                                                             



the causation theory Huit's doctors presented, their opinions did not meet the negative- 

                                                                                                                                     



evidence test for rebutting the presumption.  

                                                     



                       For the doctors' opinions in this case to meet the affirmative-evidence  

                                                                                                                 



standard, they needed to provide substantial evidence ruling out the work-related scratch  

                                                                                                                                         



as the source of the staph bacteria that caused Huit's endocarditis by identifying another  

                                                                                                                                         

explanation for the bacteria's presence in Huit's bloodstream.107                                                The Board carefully  

                                                                                                                                      



considered each doctor's opinion; we agree with the Board that none of the doctors  

                                                                                                                                        



provided substantial evidence of another cause.  

                                                                                   



                       "The  mere  possibility  of  another  injury  is  not  'substantial'  evidence  

                                                                                                                                     

sufficient to overcome the presumption."108   As the Board noted, Dr. Semler, the EIME  

                                                                                                                                           



cardiologist who based his opinion "on the lack of evidence to support the alleged  

                                                                                                                                        



scratch,"  said  the  "more  likely  medical  explanation  for  the  cause  of  the  bacterial  

                                                                                                                                      



endocarditis is unknown."  We agree with the Board that an "unknown" cause is not  

                                                                                                                                           



substantial evidence to rebut the presumption.  The other EIME physician, Dr. Leggett,  

                                                                                                                                       



            105        Norcon, 880 P.3d at 1054.
          



            106  

                                                            

                       Mackey, 965 P.2d at 28.
  



            107  

                                                                                                                  

                       Tolbert v. Alascom, Inc., 973 P.2d 603, 611 (Alaska 1999).
  



            108  

                                                                                                                                   

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



                                                                       -34-                                                                 7111
  


----------------------- Page 35-----------------------

gave   the   opinion   that   "an   unidentified   source"   was   the   substantial   cause   of   Huit's  



endocarditis, even though he acknowledged that "[t]he portal of entry may be rather                                                                                                                                                                                                                                                                                                                                                                                   



insignificant, such as the alleged abrasion/scratch."                                                                                                                                                                                                                                              Dr. Leggett listed other conditions                                                                                                        



that might provide entry points for the bacteria, but as the Board observed, "he did not                                                                                                                                                                                                                                                                                                                                                                                               



identify [Huit] as having any of those conditions."                                                                                                                                                                                                                                         His opinion, like that of Dr. Semler,                                                                                                                            



was not substantial evidence rebutting the presumption.                                                                                                                                                                                         



                                                                            The SIME physicians' opinions were similar.                                                                                                                                                                                                                        While both agreed that the                                                                                                               



 scratch   could   be   an   entry  point   for   the   bacteria,   they   refused   to   identify   it   as   the  



 substantial cause of the infection, evidently because they lacked information about or                                                                                                                                                                                                                                                                                                                                                                                                     



doubted the existence of the scratch.                                                                                                                                                                         And like Drs. Semler and Leggett, Drs. Breall and                                                                                                                                                                                                                      



Riedo were unable to identify another entry point. Dr. Breall observed that "staph aureus                                                                                                                                                                                                                                                                                                                                                                            



is ubiquitous" and can enter the bloodstream "in a susceptible individual from just about                                                                                                                                                                                                                                                                                                                                                                                 



any place." He                                                                      did not explain what would make an individual "susceptible," and, absent  



anything identifying Huit as particularly susceptible, this explanation does not rule out                                                                                                                                                                                                                                                                                                                                                                                              



the work-related scratch as the cause of the staph infection. Dr. Riedo also accepted that                                                                                                                                                                                                                                                                                                                                                                                          



the scratch Huit described could lead to endocarditis, but he thought the endocarditis was                                                                                                                                                                                                                                                                                                                                                                                          



"impossible to attribute to a single event."                                                                                                                                                                                                       He did not, however, point to other events                                                                                                                                                                       



that contributed to it.                                                                                   



                                                                            The evidence the Commission cited was not substantial.                                                                                                                                                                                                                                                                                     The opinions   



offered alternative theories ofcausation, but "themerepossibility"ofa non-work-related                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                                                      109   There was no direct evidence to  

alternative is not sufficient to rebut the presumption.                                                                                                                                                                                                                                                                                                                                                                                                                                       



 support the existence of another scratch or any other possible portal for the bacteria, and,  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  



                                      109                                   See Excursion Inlet Packing Co. v. Ugale                                                                                                                                                                                               , 92 P.3d 413, 419 (Alaska 2004)                                                                                                                      



 (per curiam) (holding that employer did not rebut presumption because "there [was] no                                                                                                                                                                                                                                                                                                                                                                                                     

direct evidence of [the alternative explanation] and it [was] inconsistent with" some                                                                                                                                                                                                                                                                                                                                                                                     

established facts).   



                                                                                                                                                                                                                                          -35-                                                                                                                                                                                                                                 7111
  


----------------------- Page 36-----------------------

as the Board observed, the EIME and SIME doctors did not have access to "the credible                                                                                          



                                                                                                            110  

lay testimony" about the existence of the scratch.                                                                                                                  

                                                                                                                   We thus conclude the Commission  



                                                                                                                                                      

erred in deciding that Ashwater Burns rebutted the presumption of compensability.  



                                                                                                                          

               C.             There Is No Irrebuttable Presumption Here.  



                                                                                                                                                                     

                              Ashwater  Burns  maintains  that  Huit  seeks  to  create  an  irrebuttable  



                                                                                                                                                                                              

presumption and that we have previously decided in cases of medical uncertainty that a  



                                                                                                                                                                                        

doctor's  opinion  that  the  disability  was  not  work  related  is  adequate  to  rebut  the  



                                                                                                                                                                                         

presumption.   It argues that several doctors' opinions met that standard, making the  



                                                                                                                                                                     

Commission's  decision  correct.                                                 Huit  denies  seeking  to  create  an  irrebuttable  



                                                                                                                                                                                           

presumption,  pointing  out  facts  that  might  have  rebutted  the  presumption,  such  as  



                                                                                                                                                  

evidence that he actually had "a similar injury away from work."  



                                                                                                                                                                                     

                              We agree with Huit that the difficulty Ashwater Burns faces is not a legal  



                                                                                                                                                                                         

hurdle, but a factual one.  The uncertainty in Huit's case revolved around where the  



                                                                                                                                                                             

bacteria entered his bloodstream.  The experts all agreed that staph caused his bacterial  



                                                                                                                                                                                      

infection, which in turn led to his need for medical treatment.  They also indicated even  



                                                                                                                                                                                         

minor scratches can serve as entry points for bacteria.  The uncertain causation in the  



                                                                                                                                                    

case was related to the existence of the scratch, as is evident from the experts' reports;  



                                                                                                                                                                              

the doctors expressed uncertainty about the existence of the scratch, not about whether  



                                                                                                                                                                             

bacteria could enter the bloodstream through a scratch.  The Board separately analyzed  



                                                                                                                                                                                            

the fact question related to the scratch and found that Huit had in fact been scratched at  



                                                                                                                                                                                        

work as he alleged.  Ashwater Burns did not question the Board's proceeding in this  



               110            Cf.   Beauchamp   v.   Emp'rs   Liab.   Assurance   Corp.,   477   P.2d  993,   996  



(Alaska 1970) (holding that "[c]ausation is not a matter lying exclusively within the field                                                                                            

of medical science" particularly when expert "lacked knowledge of relevant evidence                                                                                         

known to the Board").                               



                                                                                            -36-                                                                                     7111
  


----------------------- Page 37-----------------------

manner   and   did   not   appeal   the   Board's   resolution   of   this   factual   dispute   to   the  



Commission.   



                         Theadditional              cases Ashwater Burns relies on to supportitsargumentabout                                          

                                                                                      111     In  Cowen v. Wal-Mart the medical  

irrebuttable presumptions are distinguishable.                                                                                                    

uncertainty involved whether physical activity could cause a breast implant to deflate.112  

                                                                                                                                                                  



The employer's doctor testified that no one knew whether deflation was "related to  

                                                                                                                                                             



physical activity," but nonetheless gave the opinion, based on his experience, that work- 

                                                                                                                                                      

related activities were probably not a cause in the deflation of the employee's implant.113  

                                                                                                                                                                  



We agreed with the Board that fromthis testimony reasonable minds could conclude that  

                                                                                                                                                           



work-related physical activities were not a substantial factor in causing the employee's  

                                                                                                                                            

disability.114  Here, in contrast, the doctors agreed that Huit's scratch could provide an  

                                                                                                                                             



entry point for the staph and did not suggest an alternative entry point.  Their opinions  

                                                                                                                                                 



that the scratch was, on a more probable than not basis, not the substantial cause of the  

                                                                                                                                                           



infection were related to doubts about the scratch's existence.  

                                                                                                 



                         Likewise, in Bradbury v. Chugach Electric Ass'n an expert testified there  

                                                                                                                                                        



was  no  way  to  quantify  how  much  external  pressure  was  needed  to  rupture  an  

                                                                                                                                                           

employee's preexisting cyst.115                             But the expert testified that sufficient trauma to do so  

                                                                                                                                                             



usually came from blunt trauma, that heavy lifting could not cause a rupture, and that the  

                                                                                                                                                            



             111         We have already discussed two of these cases,                                               Norcon, Inc. v. Alaska         



 Workers' Compensation Board                                , 880 P.2d 1051 (Alaska 1994) and                                     Safeway, Inc. v.           

Mackey, 965 P.2d 22 (Alaska 1998).                       



             112         93 P.3d 420, 425-26 (Alaska 2004).  

                                                                                



             113         Id.  



             114         Id. at 426.  

                                    



             115         71 P.3d 901, 907 (Alaska 2003).  

                                                                          



                                                                             -37-                                                                      7111
  


----------------------- Page 38-----------------------

                                                                                                                                                                           116  

employee's work duties would not cause sufficient trauma to rupture the cyst.                                                                                                     We  



upheld the Board's determination that a reasonable mind could conclude from this                                                                                                   



evidence that work was not a cause of the cyst's rupture because there was no evidence                                                                                  



of trauma and the expert directly refuted the employee's theory that her work duties put                                                                                             

enough pressure on the cyst to rupture it.                                               117  



                             An  irrebuttable  presumption  is  one  "that  cannot  be  overcome  by  any  

                                                                                                                                                                           



additional  evidence  or  argument  because  it  is  accepted  as  irrefutable  proof  that  

                                                                                                                                                                                  

establishes  a  fact  beyond  dispute."118                                              Huit's  case  does  not  involve an  irrebuttable  

                                                                                                                                                                  



presumption, even though Ashwater Burns's task in rebutting the presumption became  

                                                                                                                                                                           



more difficult after the Board made its finding about the scratch's existence.  In the end  

                                                                                                                                                                                    



Huit's case is no different from cases we have previously considered, such as Firemen's  

                                                                                                                                                                     



                                                                                         119                                                                                          120  

                                                                                               or Excursion Inlet Packing Co. v. Ugale.                                                      

Fund American Insurance Cos. v. Gomes                                                                                                                                   

                                                                          



In those cases the circumstances of the employees' deaths were unknown, making the  

                                                                                                                                                                                     

                                                                                                                              121  But the uncertainty in this  

employer's task in rebutting the presumption a difficult one.                                                                                                                       

                                                                                                                      



case,  as  in  Ugale  or  Gomes,  is  resolved  through  the  use  of  the  presumption  of  

                                                                                                                                                                                      



compensability.  With different facts Ashwater Burns may have faced a less difficult  

                                                                                                                                                                          



task, but difficulty in finding and presenting additional evidence is not equivalent to  

                                                                                                                                                                                       



creating an irrebuttable presumption.  

                                                    



               116           Id.  at 906-08.
   



               117           Id.  at 903, 907-08.
     



               118           See Conclusive Presumption, BLACK 'S  LAW  DICTIONARY  (10th ed. 2014).
                                                                         

                                                                                              



               119  

                                                                                 

                             544 P.2d 1013 (Alaska 1976).
  



               120  

                                                                                                   

                             92 P.3d 413 (Alaska 2004) (per curiam).
  



               121  

                                                                                                                      

                             Id. at 419-20; Gomes, 544 P.2d at 1014, 1016.
  



                                                                                         -38-                                                                                   7111
  


----------------------- Page 39-----------------------

VI.                              CONCLUSION  



                                                                  We REVERSE the Commission's decision that Ashwater Burns rebutted                                                                                                                                                                                                                                                                  



the presumption of compensability and REMAND to the Commission with instructions                                                                                                                                                                                                                                                                                                    



to reinstate the Board's award.                                                                                        



                                                                                                                                                                                                                              -39-                                                                                                                                                                                  7111
  

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