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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Theodore D. Morrison v. Alaska Interstate Construction Inc. and SKW Eskimos, Inc. (4/19/2019) sp-7353

Theodore D. Morrison v. Alaska Interstate Construction Inc. and SKW Eskimos, Inc. (4/19/2019) sp-7353

        Notice:   This op inion  is subj ect  to correction bef ore p ublication  in  the PA CIFI C REPORTER.  

        Readers are requested to bring errors to the attention of  the Clerk of  the App ellate Courts, 

        303 K Street, Anchorage, Alaska 99501, p hone  (907)  264-0608, f ax  (907)  264-0878, email 

        corrections@akcourts.us. 



                THE SUPREME COURT OF THE STATE OF ALASKA 



THEODORE D. MORRISON,                          ) 

                                               )  Supreme Court No. S-16978 

                       Petitioner,             ) 

                                               )  Alaska Workers* Compensation 

        v.                                     )  Appeals Commission No.  17-007 

                                               ) 

ALASKA INTERSTATE                              )  O P I N I O N 

CONSTRUCTION INC. and SKW                      ) 

ESKIMOS, INC.,                                 )  No. 7353 - April  19, 2019 

                                               ) 

                       Respondents.            ) 

                                               ) 



               Petition for Review from the Alaska Workers* Compensation 

               Appeals Commission. 



               Appearances:    Joseph  A.  Kalamarides,  Kalamarides  & 

               Lambert, Anchorage,  for Petitioner.  Michelle M. Meshke, 

               Russell   Wagg   Meshke        &   Budzinski,   Anchorage,        for 

               Respondent  Alaska  Interstate  Construction,  Inc.    Colby  J. 

                Smith,  Griffin  &  Smith, Anchorage,  for  Respondent  SKW 

               Eskimos, Inc. 



               Before:  Bolger, Chief Justice, Winfree,  Stowers, Maassen, 

               and Carney, Justices. 



               BOLGER, Chief Justice. 



I.      INTRODUCTION 



               A worker had surgery on his right knee in 2004 after injuring it at work.  



He returned to work after the surgery and did not consult a doctor about that knee for 


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

almost ten years, until he again injured it in 2014 while working for a different employer.  



Following  the  2014  injury  he  sought  to  have  arthroscopic  surgery  as  his  doctor 



recommended.  His 2014 employer disputed its liability for continued medical care, and 



the  worker  filed  a  written  claim  against  the  2014  employer.    The  Alaska  Workers' 



Compensation  Board j oined  the  earlier  employer  to  the  claim  and  decided,  after  a 



hearing, that the 2014 work injury was the substantial cause of the worker's current need 



for medical care, requiring the 2014 employer to pay the cost of treatment for the right 



knee.    The  2014  employer  appealed  to  the  Alaska  Workers'  Compensation  Appeals 



Commission, which decided the Board misapplied the new compensability standard and 



remanded the case to the Board for further proceedings.  The employee petitioned this 



court for review of the Commission's decision, and we granted review.  We reverse the 



Commission's decision and reinstate the Board's award. 



II.    FACTS AND PROCEEDINGS 



               Theodore Morrison injured his right knee while working for SKW Eskimos, 



Inc. on St. Paul Island in 2004.  After Morrison's physician diagnosed meniscus tears, 



Morrison underwent arthroscopic surgery that removed parts of both his lateral meniscus 



and medial meniscus.  Morrison was released to work shortly after the surgery, but his 



physician    indicated   Morrison    might    later  need   treatment   "for   posttraumatic 



osteoarthritis."  SKW Eskimos paid Morrison all workers' compensation related to the 



2004 right knee injury.  



              From Morrison's perspective, the 2004 surgery was successful:  he testified 



that he returned to work after the surgery and performed all of his j ob duties without 



significant problems until he injured his right knee in 2014 while working for Alaska 



Interstate  Construction,  Inc.    He  described  doing  heavy  labor  from  2004  to  2014, 



including working on ladders and lifting as much as 90 to  110 pounds.  He said he did 



not see a doctor about his right knee during this time period "[b]ecause there was nothing 



                                             -2-                                          7353 


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

wrong with it, as far as  [he] was concerned."  His testimony is supported by a lack of 



medical records related to his right knee from February 2005, when he had his last post- 



operative visit, until August 2014.  



              In   late  August   2014   Morrison  was  working   for   Alaska   Interstate 



Construction at a seasonal j ob on the North Slope when he twisted his right knee while 



descending a ladder.  He  said he thought he had reached the ground but had actually 



stepped on a piece of angle iron, and when he turned to get off the ladder, he twisted his 



knee because his boot  got  caught.   He  felt  a pinch  in his right knee  and noted  some 



swelling; he reported the injury that day but did not miss work.  The physician assistant 



who  examined  him  at  the  camp  clinic  diagnosed  a  knee  strain  and  prescribed 



conservative care.  Morrison was allowed to return to work with "activity as tolerated."  



About a week later, Morrison again visited the camp clinic because he still had some pain 



and was unable to kneel; the physician assistant recommended continued conservative 



care and suggested he have an orthopedic evaluation before returning to work on the 



Slope.  



              Morrison consulted with his doctor, Dr. Dale Trombley, in late September.  



Dr.  Trombley  recommended  that  Morrison  use  an  "elastic  sleeve"  on  the  knee  and 



prescribed medication.  Dr. Trombley released Morrison to work, but told him that if he 



still experienced pain after his three-week rotation on the Slope, Morrison should "check 



in"  with  Dr.  Trombley  so  he  could  refer  Morrison  for  an  MRI.    Morrison  visited 



Dr. Trombley again in November, indicating his knee had "finally been feeling like it 



[was] getting better," even though he still had some discomfort when he climbed stairs.  



Dr. Trombley observed no swelling or tenderness in the knee and released Morrison to 



work without restrictions.  Dr. Trombley warned Morrison "that months or even years 



from now, as a result of this injury, he may end up having a return of pain, discomfort 



and limited range of motion due . . . to meniscus injury."  



                                             -3-                                         7353 


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

               Morrison returned to Dr. Trombley for his right knee pain in late March 



2015,  when  he  told  the  doctor  that  the  mild  pain  he  had  six  months  before  had  not 



resolved  and  his  limping  seemed  to  cause  discomfort  in  his  back.    Dr.  Trombley's 



examination  of  the  knee  showed  "tenderness  on  the  medial  aspect,  especially  with 



outward twisting of the foot."  Dr. Trombley referred Morrison for an MRI.  



               Morrison's imaging studies were interpreted as showing mild to moderate 



osteoarthritis, a medial meniscus tear, and some cartilage loss.  Dr. Trombley referred 



Morrison to an orthopedic doctor after reviewing the imaging studies, and Morrison saw 



Dr. Richard Garner.  At that time Dr. Garner observed limitations in Morrison's range 



of  motion  in  his  right  knee  and  suggested  a  second  arthroscopic  surgery.    Morrison 



wanted to have surgery as soon as possible so he could work through the construction 



season.  



               Alaska Interstate Construction arranged an employer's medical evaluation 



(EME) with Dr. Charles Craven, Jr., an orthopedic surgeon, who examined Morrison in 



April 2015.  Dr. Craven diagnosed Morrison as having osteoarthritis in his right knee, 



but Dr. Craven's report concluded that the 2014 injury was not the substantial cause of 



Morrison's current need for medical care.  Dr. Craven diagnosed Morrison as having 



suffered a right knee strain in the 2014 injury, and he gave the opinion that Morrison 



recovered from that injury in six to twelve weeks.  Dr. Craven did not think arthroscopic 



surgery was reasonable and necessary in any event because of studies showing that this 



type of surgery was no more effective than physical therapy.  



               Alaska Interstate Construction controverted all benefits after Dr. Craven 



wrote his report,  and  Morrison  filed  a  written workers'  compensation  claim  seeking 



medical care and temporary total disability (TTD) during his recovery from any surgery.  



At the same time he filed the written claim, Morrison asked the Board to order a second 



independent   medical   evaluation   (SIME)  because   Dr.   Trombley   disagreed   with 



                                               -4-                                            7353 


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

                                                      1 

Dr. Craven about causation and treatment.   Alaska Interstate Construction agreed an 



SIME was needed, but it denied all other parts of Morrison's claim.  



                 Alaska  Interstate  Construction  asked  Dr.  Craven  to  consider  additional 



medical records for a supplemental EME report.  The additional records did not change 



Dr.  Craven's  analysis with respect to the  2014  injury.   But Dr.  Craven  added  a new 



opinion related to causation:  Dr. Craven thought the surgery following the 2004 right 



knee injury was a substantial factor in causing or significantly accelerating Morrison's 



right knee osteoarthritis, which made it a substantial factor in the 2015 need for medical 



treatment.  Alaska Interstate Construction then asked the Board to join SKW Eskimos 



                             2 

as a party to the claim.   The Board evidently reopened the 2004 claim and j oined the 



         3 

claims.   The Board also appointed Dr. Floyd Pohlman as the SIME physician.  



                 Dr. Pohlman examined Morrison in April 2016 and reviewed many medical 



records.     The  physical   examination   indicated  Morrison  had  some  pain   and   a 



"questionable" test for a meniscus tear.  Dr. Pohlman diagnosed Morrison with a right 



knee strain and moderate degenerative arthritis in his right knee; he listed both as causes 



of  Morrison's  need  for  medical  treatment.    He  said  the  2014  injury  aggravated  the 



preexisting arthritis, "causing the  .  .  . need for treatment."  He also thought the 2014 



injury caused a permanent change in the preexisting arthritis and further gave the opinion 



        1        Dr. Trombley had written a letter giving the opinion that the 2014 injury 



was the substantial cause of Morrison's need for medical treatment. 



        2        See 8 Alaska Administrative Code (AAC) 45.040(d) (2011) ("Any person 



against whom a right to relief may exist should be j oined as a party."). 



        3        See  8  AAC  45.040(k)  (requiring  Board  to notify parties  of master  case 



number when claims are j oined).  An attorney entered an appearance for SKW Eskimos 

in the 2004 claim in May 2016, and the hearing transcript indicates that the 2014 claim 

number is the master case number.  



                                                    -5-                                                 7353 


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

that  without  the  2014  injury,  "it  is  not  likely  that  the  condition  would  have become 



symptomatic  on  that  date."    Dr.  Pohlman  identified  the  2014  twisting  injury  as  the 



substantial cause of the need for medical treatment and recommended physical therapy 



as possible additional treatment.  Dr. Pohlman agreed with Dr. Craven that surgery was 



not necessary at that time.  



               Morrison was deposed twice, once by each employer.  At his October 2015 



deposition, Morrison testified about the 2014 accident and said he had continued pain 



afterward even though he missed no work as a result of it.  He described limping a few 



months after the accident but said he continued to work.  He said he stopped working for 



Alaska Interstate Construction around Thanksgiving because he had "made [his] money 



for the year and [he] was done."  He indicated he had returned to work in February 2015 



and had worked at some proj ects from then until the time of the deposition.  He testified 



that he had continuing pain in his right knee and still felt a pinch in his knee when he 



twisted to the right or spun on the knee.  He continued to take medication for the knee 



and had been unable to identify specific activities that triggered his symptoms.  He said 



he planned to work if he was able to find something suitable. 



               At Morrison's second deposition, taken about a year later, he said he had 



experienced constant pain for 26 months and thought the pain might be "a little worse" 



then, as he was taking more aspirin.  He had a prescription for ibuprofen that he used 



when the pain was bad enough to make him limp.  He had continued his usual pattern of 



working  only  as  much  as  he  felt  necessary  and  had  collected  unemployment  from 



February to May 2016.  He had worked for two employers at different j obs in the year 



between the two depositions and did not think this employment had impacted his knee 



pain.  



               Dr. Craven testified by deposition.  His opinions were overall consistent 



with  his  report,  although  he  provided  more  detail  about  some  issues.    Dr.  Craven 



                                               -6-                                            7353 


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

described Morrison as "straightforward," and he said Morrison "gave full and maximal 



effort"  during  the  examination  and  had  shown  "absolutely  no  pain  behaviors."  



Dr. Craven considered the 2004 injury to be a substantial factor in Morrison's current 



need for medical treatment because the partial removal of the meniscus accelerated any 



minor arthritic changes existing at the time of that injury.  Dr. Craven thought Morrison 



probably had suffered symptoms of right knee arthritis prior to the 2014 injury but had 



not perceived them as such; he attributed this to what he described as a stoic personality.  



Dr.  Craven  indicated  that  even  if  a person has  osteoarthritis, he would not treat  that 



condition until the person shows symptoms.  



                 Dr. Craven insisted that the right knee would have become symptomatic at 



some  point  because  of  its  condition,  and  he  agreed  that  twisting  injuries  can  cause 



arthritis  to  become  symptomatic  even  if  they  do  not  cause  the  arthritis  itself.    He 



acknowledged that he was "not in a position to refute" Morrison's pain reports, and when 



asked by SKW Eskimos' attorney whether Morrison's subj ective pain symptoms "would 



be  the  substantial  cause,  weighing  them  only,  for  the  need  for  further  treatment," 



Dr. Craven agreed that "if subj ective symptoms are the only thing that . . . substantiate[] 



a substantial cause, then yes."  



                 Dr. Pohlman testified both by deposition and at the later Board hearing.  



Dr. Pohlman testified that the 2004 injury and related surgery were the substantial cause 



of  Morrison's  osteoarthritis  and the  2014  injury was not the  substantial  cause  of  the 



                              4 

arthritic condition itself.   But Dr. Pohlman indicated in his deposition that it was "hard 



to  answer"  a  question  about  which  injury  was  the  substantial  cause  of  Morrison's 



continuing  need  for  medical  treatment.    He  appeared  to  agree  with  Dr.  Craven  that 



        4        Dr. Pohlman identified only the 2004 and 2014 injuries as causal factors in 



Morrison's  condition,  rej ecting  the  suggestion  that  the  underlying  osteoarthritis 

constituted a third discrete cause. 



                                                     -7-                                                 7353 


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

without the 2004 injury and the osteoarthritis that resulted from the meniscus surgery, 



the 2014 injury would likely have resolved in a few weeks or months.  But Dr. Pohlman 



also thought the 2014 injury had to have changed something or Morrison would not have 



become symptomatic at that point.  When asked whether the 2014 injury "result[ed] in 



any pathological changes in the condition of the knee," Dr. Pohlman answered, "I can't 



say."    In  terms  of  which  injury  was  responsible  for  the  need  for medical  treatment, 



Dr. Pohlman said, "[I]t's not one [injury] or the other.  He had to have osteoarthritis.  The 



2014 injury aggravated it and made it symptomatic. . . .  I wouldn't say one is responsible 



and one isn't.  They both are."  Like Dr. Craven, Dr. Pohlman testified that doctors treat 



osteoarthritis only when it is symptomatic.  



               With respect to treatment options, Dr. Pohlman also thought arthroscopic 



surgery was probably not indicated because Morrison's symptoms did not suggest that 



surgery  would  improve  the  knee pain.    Dr.  Pohlman  suggested  a  course  of physical 



therapy,  which  had  not  been  tried,  and  thought  viscosupplementation  (inj ecting 



hyaluronic acid into the joint) might be an option if the pain increased.  He also said a 



knee replacement might be indicated in the future as the osteoarthritis progressed and 



pain increased.  Dr. Pohlman accepted that Morrison had in fact been symptom-free in 



the interval between the 2004 surgery and the 2014 injury.  Dr. Pohlman testified that he 



had treated patients who had no symptoms at all, twisted their knee, and on examination 



were found to need a total knee replacement because they had "bone-on-bone" contact.  



               The  Board  held  a  hearing  on  Morrison's  claim  for  continuing  medical 



treatment in December 2016.  At the hearing Dr. Pohlman gave an estimate of how he 



would allocate causation of the injury if he were in an apportionment jurisdiction, saying 



that he would allot about 80% to 90% to the 2004 injury and 10% to 20% to the 2014 



injury.    One  Board  panel  member  asked  Dr.  Pohlman  whether  a  person  with 



osteoarthritis would require treatment "if there wasn't a triggering event in cases like 



                                               -8-                                           7353 


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

this."  Dr. Pohlman  said the  question was  "unanswerable"  and reiterated that he had 



"seen people that have  completely worn  out knees with bone-on-bone  contact  [who] 



didn't have any symptoms."  



                Morrison testified briefly at the hearing, again describing the injuries and 



the progression of medical treatment following the 2014 accident.  He agreed he was 



having right knee problems that began  in 2014 and  said he wanted to have the knee 



"fixed if possible."  He affirmed that he had not had pain in the right knee from 2005 to 



2014.  



                The  Board  decided  that  the  2014  injury  was  the  substantial  cause  of 



Morrison's current need for medical treatment.  The Board first noted that Morrison had 



attached the presumption that his need for medical treatment was compensable and that 



each employer had rebutted the presumption that it was liable by identifying the other 



employer as the cause of the need for medical treatment.  The Board gave greater weight 



to the medical opinions of Dr. Pohlman and Dr. Craven than to Dr. Trombley's opinion 



letter because they had "performed comprehensive medical records reviews."  The Board 



found Dr. Pohlman and Morrison credible.  The Board discussed prior cases, including 



DeYonge v. NANA/Marriott, where we applied to workers' compensation a rule from 



occupational  disability  cases  that  a  permanent  aggravation  of  symptoms  can  be  a 



                         5 

compensable injury,  and a Commission decision that had applied DeYonge to a post- 

2005 injury.6  It also discussed another Board decision that had determined an injury 



could  be  the  substantial  cause  of  a  need  for  medical  treatment  even  if  a  preexisting 



        5       1 P.3d 90 (Alaska 2000). 



        6       City  & Borough  of  Juneau  v.  Olsen, AWCAC  Dec. No.  185  (Aug.  2 1, 



2013). 



                                                  -9-                                               7353 


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

                                                  7 

condition might  significantly contribute.   The Board  said the last injurious exposure 



     8 

rule  had not been abrogated to the extent that "it still operates to prevent apportionment 



of liability of injury among employers."  



                The Board decided that the 2014 injury had caused a permanent increase 



in Morrison's right knee symptoms.  It reasoned that because the doctors agreed medical 



treatment of arthritis is based on symptoms, the 2014 injury was the substantial cause of 



Morrison's current need for medical treatment even though the doctors were not able to 



say whether Morrison's right knee was itself damaged after the 2014 injury.  It ordered 



Alaska Interstate Construction to pay for medical care related to Morrison's right knee 



                                                                           9 

and pay both SKW Eskimos' and Morrison's attorney's fees.   



                Alaska Interstate Construction appealed to the Commission, arguing that 



the Board had erred legally in its application of DeYonge to the case because DeYonge 



predated the adoption of "the substantial cause" as a compensability standard.  Alaska 



Interstate Construction conceded that the 2005 amendments "may not prohibit an award 



of  benefits  based  on  increased  symptoms,"  but  it  nonetheless  contended  that  "[t]he 



        7       Sarmiento-Mendoza v. State, AWCB Dec. No.  14-0122 (Sept. 2, 2014). 



        8       When an employee's disability or need for medical treatment is caused by 



more than one work-related injury, the injurious exposure rule imposes compensation 

liability on the  last  employment that was  a  causal  factor  in the  disability  or need  for 

medical treatment.  Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 595 (Alaska 

1979). 



        9       When two  employers  dispute which  one  is liable  for  compensation, the 



employer who is found liable is required to reimburse the other employer's attorney's 

fees.  See AS 23.30.155(d) (including attorney's fees and costs in reimbursement Board 

can  order  between  employers  when  each  contends  the  other  is  liable);  Bouse  v. 

Fireman 's   Fund   Ins.       Co.,    932    P.2d    222,    24 1   (Alaska     1997)     (interpreting 

AS 23.30.155(d) with regard to requirement that one employer reimburse the other's 

attorney's fees). 



                                                   -10-                                               7353 


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

application of DeYonge to the current legal causation standard needs to be reevaluated."  



It  contended  that  the  Board  erred  by  focusing  on  the  2014  injury  as  the  injury  that 



"triggered" Morrison's symptoms and alleged the Board failed to weigh the different 



causes and determine which one predominated.  



               Morrison  argued  in  response  that  the  Board  had  correctly  applied 

Commission precedent to the case, specifically citing City of  Seward v. Hansen,10 which 



he argued had rej ected the idea that DeYonge was not viable after the 2005 amendments.  



In response to Alaska Interstate Construction's argument that "the substantial cause" had 



to be  at  least  a  51%  cause,  he  quoted  a  letter  about  the  2005  amendments  from  the 



Department  of  Law  to  the  governor  that  said,  "Because  'the  substantial  cause'  is 



determined in relation to employment and other causes, it follows that the employment 



may be 'the substantial cause' but not necessarily 'more than 50 percent.' "  He argued 



that because Dr. Pohlman had testified that "doctors do not do surgery on a knee until 



there is pain," the 2014 injury, which caused Morrison's arthritic right knee to become 



painful, was the substantial cause of Morrison's current need for medical treatment.  



               SKW Eskimos agreed with Morrison that the Board had correctly applied 



the  law,  contending  that DeYonge  remained  valid  after  adoption  of  "the  substantial 



cause"  as  a  standard  for  compensability.    SKW  Eskimos  argued  that  the  medical 



testimony at the hearing was contrary to Alaska Interstate Construction's interpretation 



of the evidence.  SKW Eskimos also maintained that the Board had properly applied the 



last injurious exposure rule.  



               The Commission reversed the Board's decision and remanded the case for 



the Board "to examine in further detail the relationship between the first (2004) injury 



        10     AWCAC Dec. No.  146 (Jan. 2 1, 2011). 



                                               -11-                                            7353 


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

and the second (2014) injury to determine the substantial cause for any ongoing medical 



treatment."  The Commission discussed both legal and factual reasons for its decision.  



               The  Commission  identified  "keeping  workers'  compensation  insurance 



premiums affordable for employers" as "an important purpose" of the 2005 amendments.  



The Commission concluded that the legislature intended to contract coverage under the 



Alaska Workers' Compensation Act (Act) when it changed the causation standard.  It 



then summarized cases related to aggravations, including DeYonge, and others related 



to the last injurious exposure rule.  The Commission wrote, "The question that remains 



is whether  an increase in  symptoms meets the  definition  of  'the  substantial  cause'  or 



whether  the underlying  condition  must be  changed before  the  increase  in  symptoms 



becomes 'the substantial cause.' "  



               The Commission thought the Board had "ignored" Dr. Pohlman's testimony 



about  apportionment  and  also  said  that  "hastening  the  need  for  treatment  does  not 



necessarily make it the substantial cause."  The Commission interpreted Dr. Pohlman's 



testimony  as  "seemingly  agree[ing  that]  the  substantial  cause  for  treatment  of  the 



underlying condition was the 2004 injury."  



               The Commission concluded its discussion as follows: 



                      The Board erred in relying on pre-2005 case law for 

               the proposition that an onset of symptoms following the 2014 

               injury is sufficient to define it as the substantial cause for all 

               ongoing medical treatment without following the requirement 

               of AS 23.30.010(a) to weigh all relevant causes.  A remand 

               is  necessary  for  the  Board  to  weigh  all  factors  before 

               determining which  injury is the  substantial  cause  of  future 

               and ongoing medical treatment.   



               We granted Morrison's petition for review of the Commission's decision.  



                                             -12-                                          7353 


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

III.    STANDARD OF REVIEW 



                In an appeal from the Commission, we review the Commission's decision 



                        11 

and not the Board's.    "We apply our independent judgment to questions of law that do 



not involve agency expertise, including issues of statutory interpretation" and "interpret 



a statute 'according to reason, practicality, and common sense, considering the meaning 

of the statute's language, its legislative history, and its purpose.' "12  



IV.     DISCUSSION 



                This case presents questions related to the 2005 amendments to the Act.  

The Act creates a presumption that a claim falls within the Act's coverage.13  Before 



2005, application of this presumption followed a three-step analysis developed through 

case law.14  In 2005 the legislature modified the standard for compensability of injuries 



and set out steps for the Board to use in evaluating compensability.15  This case involves 



only the last step of the compensability analysis:  no party has raised an issue related to 



attaching or rebutting the presumption, so we assume without deciding that Morrison 



attached the presumption and that the two employers rebutted that presumption. 



                Under our prior case law, when an employer rebutted the presumption that 



an injury was compensable, the employee had the burden of proving that the employment 



        11      Alaska Airlines, Inc. v. Darrow, 403 P.3d  1116,  112 1 (Alaska 2017). 



        12      Vandenberg v. State, Dep 't  of  Health  & Soc. Servs.,  371 P.3d  602,  606 



(Alaska 2016)  (quoting Louie v. BP Exp l.  (Alaska), Inc.,  327 P.3d 204, 206  (Alaska 

2014)). 



        13      AS 23.30.120(a)(1). 



        14      See Huit  v. Ashwater Burns, Inc.,  372  P.3d  904,  906-07  (Alaska  2016) 



(summarizing pre-2005 presumption analysis). 



        15      AS 23.30.010(a). 



                                                 -13-                                             7353 


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

was  a  substantial  factor  in  causing  the  disability  or  need  for  medical  care.16    The 



legislature in 2005 changed the compensability standard to "the substantial cause"17 to 



reduce the number of compensable claims.  Alaska Statute 23.30.010(a) now provides 



in relevant part: 



                [C]ompensation 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. . . .  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 board must 

                evaluate the relative  contribution  of  different causes  of the 

                disability   or  death   or  the  need   for  medical  treatment.  

                Compensation or benefits under this chapter are payable for 

                the  disability  or  death  or  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. 



                In  this  case  we  must  also  consider  the  interaction  between  the  new 



compensability  standard  and  two  rules  derived  from  our  precedent  that  are  used  in 

Alaska workers' compensation law:  the last injurious exposure rule18 and the rule that 



an increase in symptoms can constitute a compensable injury.19  



        16     Ketchikan  Gateway  Borough  v.  Saling,  604  P.2d  590,  597-98  (Alaska 



1979).  This standard was derived from tort law.  Id. at 598. 



        17      Ch.  10,  9, FSSLA 2005. 



        18      Saling, 604 P.2d at 597.  The last injurious exposure rule is the maj ority 



rule  in  the  United   States.     14   ARTHUR   LARSON   ET   AL.,   LARSON 'S   WORKERS' 

COMPENSATION LAW  153.02[1] (2018) (noting that last injurious exposure rule "is the 

maj ority rule in successive insurer cases").   



        19      See DeYonge v. NANA/Marriott, 1 P.3d 90, 96 (Alaska 2000) (holding that 



employment that worsens symptoms can be an aggravation "even when the j ob does not 

                                                                                     (continued...) 



                                                -14-                                             7353 


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

               The facts in this case are largely undisputed, and even though the doctors 



came to different conclusions, they agreed about many significant facts.  No one disputed 



that Morrison injured his right knee at his two jobs.  Dr. Craven and Dr. Pohlman, the 



doctors whose opinions the Board gave more weight, agreed that the 2004 injury and 



resulting surgery accelerated Morrison's mild right knee osteoarthritis so that the 2004 



injury was a substantial factor contributing to the need for medical treatment.  (In fact 



Morrison's  surgeon  warned  him  of  this  possibility  in  2004.)    Dr.  Craven  and 



Dr.  Pohlman  also  agreed  that  doctors  do  not  treat  osteoarthritis  in  the  absence  of 



symptoms, and they agreed the 2014 injury caused some increase in Morrison's right 



knee symptoms.  Neither doctor doubted Morrison's reports that he had perceived no 



symptoms from 2005 to 2014 or that he continued to experience right knee pain after the 



2014 injury, although they differed in the way they interpreted this information.  The 



parties  dispute  whether  the  Board  correctly  applied  the  new  causation  standard  and 



whether the Commission correctly construed the statute when it decided to remand the 



case to the Board.  



       A.      The 2005 Amendments To The Alaska Workers' Compensation Act 

               Did Not Change The Type Of Injury That May Be Compensable. 



               We  first  consider  whether  the  2005  amendments  modified  the  rule  we 

adopted in DeYonge.20  There we applied to a workers' compensation claim a rule from 



occupational disability cases:  an aggravation of symptoms can be a compensable injury 

even in the absence of an aggravation in the underlying disease.21  Morrison asserts that 



       19      (...continued) 



actually worsen the underlying condition"). 



       20      Id. 



       21      Id. 



                                              -15-                                          7353 


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

the Commission "seems to take [the] position that the DeYonge analysis does not apply 



under  the  substantial  cause  test,"  citing  part  of  the  Commission  decision.    Alaska 



Interstate Construction contends that DeYonge needs to be reexamined in light of the 



new  standard  of  compensability,  but  at  oral  argument  before  us,  it  agreed  that 



aggravations  producing  only  increased  symptoms  can  still  be  compensable  injuries.  



SKW Eskimos argues that recent Commission decisions essentially overrule DeYonge; 



in its view the Commission has "completely change[d] the compensability standard and 



only allows the compensability of work injuries that have an obj ective or pathological 



worsening."  



               We  agree with the parties that the legislature did not  abrogate DeYonge 



when  it  amended the  compensability  standard  in 2005.   The  Commission apparently 



questioned whether the rule in DeYonge was still valid, writing:  "Thus, the question now 



is  whether  an  aggravation  of  symptoms  is  sufficient  to  find  an  employer  liable  for 



ongoing medical benefits."   It  also wrote:   "The  question that remains  is whether  an 



increase  in  symptoms  meets  the  definition  of  'the  substantial  cause'  or  whether  the 



underlying condition must be changed before the increase in symptoms becomes  'the 



substantial cause.' "  



               In  our  view  the  Commission  framed  the  issue  incorrectly.    Symptoms 



frequently prompt people to seek medical care, and an increase in symptoms may be a 



reason  medical treatment  is necessary -  indeed  the  doctors  in  this  case  agreed  that 



symptoms  are  the  only  reason  doctors  treat  osteoarthritis.    But  the  Commission's 



question essentially looks at what qualifies as an injury, which is not how the legislature 



chose to reduce the number of potentially compensable claims.  



               The statutory language does not require the Board to look at the type of 



injury  in  identifying the  substantial  cause  of the need  for medical treatment.  Alaska 



Statute 23.30.010(a) requires the Board to "evaluate the relative contribution of different 



                                              -16-                                          7353 


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

causes  of  the  .  .  .  the  need  for  medical  treatment."    That  subsection  then  provides, 



"Compensation or benefits under this chapter are payable for . . . medical treatment if, 



in relation to other causes, the employment is the substantial cause of the . . . need for 

medical treatment."22  When read together, these sentences do not reflect an instruction 



to consider the type of inj ury when evaluating compensability; instead, they require the 



Board  to  look  at  the  causes  of  the  injury  or  symptoms  to  determine  whether  "the 



employment" was a cause important enough to bear legal responsibility for the medical 



treatment needed for the injury. 



               Our reading of the statute is supported by the legislative history.  During 



consideration of the 2005 amendments, one proposal would have amended the definition 



of  "injury"  in  the  Act  to  exclude  from  coverage  an  "aggravation,  acceleration,  or 



combination  with   a  preexisting   condition  unless  the   employment  is  the  maj or 

contributing cause of the disability or need for medical treatment."23  Even though the 



proposal would have redefined "injury"  for purposes  of the Act, the language in this 



proposal, like  the  amendment  that was ultimately  adopted,  focused  on  the  degree  to 



which "the employment" contributed to the injury.  It did not remove from coverage 



certain classes of injury or disease, nor did it require a pathological change in a condition 



in  order  to  establish  compensability.    The  parties  point  to  no  legislative  history 



suggesting an intent in the final bill to exclude injuries that cause increased symptoms, 



the Commission cited none, and our review of the legislative history shows no discussion 



        22     AS 23.30.010(a). 



        23     Minutes, Sen. Judiciary Standing Comm. Hearing on C.S.S.B. 130(L&C), 



24th Leg., 1st Sess. 10:35:54 (Apr. 7, 2005).  The Free Conference Committee discussed 

but ultimately rej ected a similar proposal using the maj or contributing cause standard.  

Minutes,  Free  Conference  Comm.  on  S.B.  130  Hearing  on  C.C.S.S.B.  130(fld  H), 

24th Leg.,  1st Special Sess. 5:40:15-5:42:02, 9:12:18-9:24:24 (May 20, 2005). 



                                                -17-                                            7353 


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

of DeYonge and no intention to categorically exclude a class of injuries.  The legislature 

is presumed to be "aware of existing case law when it enacts or modifies the law,"24 so 



the  lack  of  any  discussion  of  DeYonge  in  the  legislative  history  together  with  the 



legislature's rej ection of a change in the definition of "injury" indicate that the legislature 



did not intend to abrogate DeYonge. 



               As  we  noted  earlier,  the  doctors  here  agreed  that  osteoarthritis  is  only 



treated when  it becomes  symptomatic.   They  also  agreed  that  Morrison's  symptoms 



related to his right-knee osteoarthritis became sufficiently troublesome to require medical 

attention  only  after  the  2014  injury.25    The  Board  needed  to  consider  what  factors 



contributed to the pain associated with the osteoarthritis.  In Morrison's case the only 



factors identified were his 2014 injury and his 2004 injury (and related surgery).  The 



Board thus correctly concluded that the two injuries were the causes it needed to consider 



in determining "the substantial cause" of Morrison's need for medical treatment. 



        B.     The Legislature Modified The Last Injurious Exposure Rule. 



               Morrison contends that the last injurious exposure rule was not changed by 



the 2005 amendments, quoting legislative hearing testimony to the effect that the change 



in the compensability standard did not affect the last injurious exposure rule.  Alaska 



        24     Huit v. Ashwater Burns, Inc., 372 P.3d 904, 913 (Alaska 2016). 



        25     In this case the Board wrestled with an additional medical question that it 



found unnecessary to resolve because of DeYonge:  did the 2014 injury cause more than 

just an increase in symptoms?  The doctors who examined Morrison disagreed in their 

interpretations of the MRI, as the Board explained.  Dr. Pohlman was unable to rule out 

the possibility that Morrison had suffered some permanent change in his knee condition 

due  to  the  2014  injury:    when  asked  whether  the  2014  injury  "result[ed]  in  any 

pathological changes in the condition of the knee," Dr. Pohlman answered, "I can't say."  

Dr. Craven acknowledged that twisting a knee can cause a meniscus tear as well as an 

aggravation  of  underlying  osteoarthritis,  even  though  he  diagnosed  only  a  strain  in 

Morrison's case.  



                                               -18-                                           7353 


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

Interstate  Construction  argues  that  the  Board  erroneously  applied  the  last  injurious 



exposure rule and imposed full liability on it because Morrison's later injury happened 



during his employment.  Before the Board and the Commission, SKW Eskimos raised 



the last injurious exposure rule as a reason for imposing liability on Alaska Interstate 



Construction, but it does not repeat that argument in its brief before us. 



               According  to  the  Commission,  "[t]he  Board  found  Alaska  Interstate 



[Construction] to be liable  for  ongoing medical benefits under both the last injurious 



exposure doctrine and the substantial cause definition."  The Commission summarized 



the  last  injurious  exposure  doctrine  and  indicated  AS  23.30.010(a)  had  changed  the 



causation standard, but it did not identify how the Board used the last injurious exposure 



rule to impose liability for Morrison's medical care on Alaska Interstate Construction.  



               As a general matter, the last injurious exposure rule applies in the workers' 



compensation context when successive work injuries with different employers contribute 

to a worker's disability or need for medical care.26  The rule "imposes full liability on the 



employer  at the time  of the most recent  injury that bears  a  causal relationship to the 

disability."27  We adopted the last injurious exposure rule in Ketchikan Gateway Borough 



v. Saling because we considered it "more compatible with existing Alaska law."28  We 



recognized  that  it  would  cause  some  inequity,  but  we  considered  the  rule  easier  to 



       26      LARSON, sup ra note  18,   153.02[1]. 



       27      Ketchikan Gateway Borough v. Saling, 604 P.2d 590, 595 (Alaska  1979).  



Another approach is to apportion liability among the employers.  Id.; see also LARSON, 

  153.03[1]. 



       28      604 P.2d at 595. 



                                              -19-                                          7353 


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

administer than apportionment and thought payments from the second injury fund would 

offset some of the inequity.29 



                Alaska  Statute  23.30.010(a)  now  requires  the  Board  to  "evaluate  the 



relative  contribution  of  different  causes  of  .  .  .  the  need  for  medical  treatment"  and 



determine "if, in relation to other causes, the employment is the substantial cause of the 



. . . need for medical treatment."  The statutory language itself does not clarify whether 



"the employment" refers to employment as a whole - as it might if it were concerned 



with comparing all employment-related causes with all non-employment-related causes 



- or if it refers to a specific employment relationship existing at the time of a particular 



injury.  But the legislative history strongly suggests that the legislature intended to permit 



later employers to try to shift liability to an earlier employer, thus modifying the rule we 



adopted in Saling . 



                Morrison is correct that Kristin Knudsen, an assistant attorney general who 

helped write the relevant statutory language,30 told the Free Conference Committee that 



the statutory language did not "get[] rid of the last injurious exposure doctrine" and that 

"it  doesn't  affect  the  last  injurious  exposure  doctrine."31    But  she  also  said  that  the 



language would "provide an opportunity for employers to shift, sometimes, when they 



may have been a substantial factor to another employer who was the substantial factor 



        29      Id. at 596-98.  The second injury fund is still operative.  See AS 23.30.205.  



The fund provides partial reimbursement to employers for some compensation when a 

worker has  one  of  a  list of preexisting  conditions; the  employer must have  a written 

record showing it knew of the condition.  Id.  



        30      Statement of Sen. Gene Therriault, at 1:19:18-1:19:23, Hearing on C.C.S. 



S.B. 130(fld H) Before Free Conference Comm. on S.B. 130, 24th Leg., 1st Special Sess. 

(May 2 1, 2005). 



        31      Id. testimony of Kristin Knudsen, Assistant Att'y Gen. at 1:49:31-1:49:42. 



                                                  -20-                                              7353 


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

[sic]."32  The legislature in 2005 retained statutory provisions directly related to the last 



injurious exposure rule, continuing to require one employer to pay the attorney's fees of 

                                                                                                   33   We 

another  employer when  the  two  employers  dispute  liability  for  compensation. 



interpret the language and legislative history to mean that the 2005 amendments modified 



the last injurious exposure rule to allow the Board to impose full liability for an injury 



on an earlier employer but did not adopt apportionment - the alternative we rej ected in 



         34 

Saling . 



                 Alaska Interstate Construction relies on the comments Knudsen made about 



shifting responsibility  to  argue  that  Morrison's  case  "is  exactly  the  type  of  situation 



sought to be prevented."  But allowing an earlier employer to be found responsible does 



not  require  the  earlier  employer  to be  found responsible:   the possibility  that  a  later 



employer may shift responsibility for payment to an earlier employer does not compel 



the  Board  to  do  so.    In  this  case  the  Board  relied  on  medical  testimony  to  identify 



employment with both Alaska Interstate Construction and  SKW Eskimos as possible 



causes of Morrison's need for medical treatment.  The Board decided after weighing the 



evidence that the injury with Alaska Interstate Construction was the substantial cause of 



the medical treatment Morrison needed at the time of the hearing.   



                 Alaska Interstate Construction then focuses on Knudsen's testimony that 



"initial treatment of injuries that occur on the job" would be compensable, even in the 



        32       Id. at  1:49:44-1:50:09. 



        33       AS 23.30.155(d). 



        34       Apportionment was mentioned in the Free Conference Committee hearings, 



but  no  amendment  related  to  apportionment  was  considered  then.    Minutes,  Free 

Conference Comm. on S.B. 130 Hearing on C.C.S.S.B. 130(fld H), 24th Leg., 1st Special 

Sess. 6:09:56 (May 20, 2005). 



                                                   -2 1-                                                7353 


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

                                            35 

presence of a preexisting condition.            Alaska Interstate Construction asserts that it paid 



for  initial  treatment  of  Morrison's  right  knee  and  claims  that  "at  some  point,  the 



substantial  cause  for  the  need  for  ongoing  medical  treatment"  became  Morrison's 



preexisting  injury.    This  is  a  fact-dependent  issue.    We  see  nothing  in  the  statutory 



language or legislative history to support a legal rule that in all cases a later employer can 



                                                                          36 

shift responsibility for medical care to an earlier employer.                 The legislature modified 



the  last  injurious  exposure  rule  to  permit  a  later  employer  to  argue  that  an  earlier 



employer should bear legal responsibility, but the Board remains able to impose liability 



on  a  later  employment  that  is  a  causal  factor  if  the  Board  determines  the  later 



employment is "the substantial cause" of the need for medical treatment. 



                 We see no indication that the Board incorrectly applied the last injurious 



exposure  doctrine  in  its  decision  here.    It  carefully  considered  how  the  two  injuries 



contributed to Morrison's need for medical care.  It discussed in some detail the medical 



testimony and imposed liability on Alaska Interstate Construction because in the Board's 



view employment with Alaska Interstate Construction was the cause of the onset of the 



symptoms that led to Morrison's need for medical care.  The Board's decision does not 



suggest that it imposed liability simply because Alaska Interstate Construction was the 



last employment with a causal relationship to Morrison's right knee condition. 



        35       Testimony of Kristin Knudsen, Assistant Att'y Gen. at  1:50:08-1:50:44, 



Hearing on C.C.S.S.B.  130(fld H) Before Free Conference Comm. on  S.B.  130, 24th 

Leg.,  1st Special Sess. (May 2 1, 2005). 



        36       See  Senate  Floor  Debate  on  S.B.  130  at  11:28-11:37  (May  24,  2005) 



(Statement  of  Sen.  Gene  Therriault)  (indicating that  last  employer  in  series  of work- 

related injuries would "not necessarily . . . get stuck with the entire bill"); id. at  12:07- 

14:07 (Statement of Sen. Ralph Seekins) (stating that Board could shift responsibility to 

earlier employer under new causation standard). 



                                                    -22-                                                 7353 


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

        C.      The Board Correctly Applied The New Causation Standard When It 

                Determined The 2014 Injury Was The Substantial Cause Of The Need 

                For Medical Treatment At The Time Of The Hearing. 



                The Commission decided that the Board had misapplied the new causation 



standard and erred in its application of "pre-2005 case law," and it remanded the case to 



the Board "to weigh all factors before determining which injury is the substantial cause 



of future and ongoing medical treatment."  The Commission evidently interpreted the 



Board's decision as "just look[ing] to the last incident and ascrib[ing] all ongoing need 



for medical treatment to it."  The Commission did not disavow or overrule any of its 



previous decisions.  



                We   have   not   considered   the   meaning   or   application   of   the   new 



                                                                                    37 

compensability standard at the final stage of the presumption analysis.                Here only two 



causes were identified for purposes of evaluating the  substantial cause of Morrison's 



need  for  medical  treatment  -  employment  with  SKW  Eskimos  and  with  Alaska 



Interstate Construction.  The Board had to decide which was "the substantial cause" of 



the  need  for  medical  treatment,  and  the  Board  found  that  employment  with  Alaska 



Interstate Construction was the most important causal factor.  



                Before us the main  dispute related to  causation  is the  extent to which  a 



"triggering" event (to use Alaska Interstate Construction's term) can be "the substantial 



cause"  of  the  need  for  ongoing  medical  treatment.    Alaska  Interstate  Construction 



contends that the Board's analysis was flawed because it placed too much weight on the 



triggering event and failed to consider the extent to which the 2004 injury contributed 



to the present need  for medical treatment.   SKW Eskimos takes the position that the 



        37      We have previously looked at the impact of the amendments on the second 



stage of the presumption analysis.  See Huit v. Ashwater Burns, Inc., 372 P.3d 904, 919 

(Alaska 2016) (holding that 2005 amendments did not abrogate negative-evidence test 

to rebut the presumption of compensability). 



                                                  -23-                                              7353 


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

Board's analysis was legally and factually sound.  Morrison contends that the Board is 



now required "to look at the various causes and determine if the accident is the more 



important  cause."    He  argues  that  the  question  "is  whether  or  not  the  work  related 



condition was the substantial factor in the need for medical treatment, not necessarily the 



substantial factor for an employee's over-all condition."  



               We construe a statute "according to reason, practicality, and common sense, 



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

purpose."38  In relevant part, AS 23.30.010(a) provides: 



               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  board  must   evaluate  the  relative 

               contribution of different causes of the disability or death or 

               the need  for medical treatment.   Compensation  or benefits 

               under this chapter are payable for the disability or death or 

               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  statutory language is not  complex:  it  specifies that the Board must 



consider  different  causes  of  the  benefit  sought  and  the  extent  to  which  each  cause 



contributed to the need for the specific benefit at issue; the Board must then identify one 



cause as "the substantial cause."  The legislature did not define either "substantial" or 

"the  substantial  cause,"39  but  the  legislative  history  shows  an  intent  to  narrow  the 



compensability standard developed in our previous case law. 



               In  the  context  of  workers'  compensation  cases  where  an  employee's 



disability or need for medical treatment resulted from an aggravation of a preexisting 



injury or had more than one possible  cause, we previously adopted from tort law the 



        38     Id. at 912. 



        39     See AS 23.30.395. 



                                               -24-                                            7353 


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

                              40 

"substantial factor" test.    Under that test a worker was required to prove that work was 

both a but-for (or factual) cause of the disability and a proximate (or legal) cause.41  The 



current statutory language changes that standard.  



                 As the  Commission noted in its decision, the current  statutory language 



came about after an earlier attempt to amend the statute failed.  The initial attempt to 



amend the compensability standard was made in the Senate Judiciary Committee, which 



proposed   changing  the   definition  of   "injury"   in  AS  23.30.395(17)  to   exclude 



"aggravation,  acceleration  or  combination  with  a  preexisting  condition  unless  the 



employment  is  the  maj or  contributing  cause  of  the  disability  or  need  for  medical 



              42                                                                             43 

treatment."       This language was removed from the legislation in the House.    The Free 



Conference  Committee  on  the  bill  rej ected  an  amendment  that  reincorporated  this 

definition  of  "injury"  into  the  legislation.44    It  also  reje cted  a  variation  on  that 



amendment, which would have said, "Determining the maj or contributing cause requires 



the evaluation of the relative contribution of different causes of disability or death of the 



employee or the employee's need for medical treatment and finding the cause that is the 



        40       Fairbanks N. Star Borough  v. Rogers  & Babler,  747  P.2d  528, 531-32 



(Alaska  1987). 



        41       Id. 



        42       Minutes, Sen. Judiciary Standing Comm. Hearing on C.S.S.B. 130(L&C), 



24th Leg.,  1st Sess.  10:35:54 (Apr. 7, 2005). 



        43       See  Minutes,  House  Labor  &  Commerce  Standing  Comm.,  Hearing  on 



C.S.S.B.  130(FIN) am, 24th Leg.,  1st Sess. 5:50:20 (May 4, 2005). 



        44       Minutes, Free Conference Committee on S.B.130 Hearing on C.C.S.S.B. 



130(fld  H),  24th  Leg.,  1st  Special  Sess.  5:40:15-5:42:02,  9:12:18-9:24:24  (May  20, 

2005). 



                                                   -25-                                                 7353 


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

primary cause."45  Rather than adopt a standard that used the term "maj or contributing 



cause," which one witness indicated would be a 51% or greater cause,46 the legislature 



instead chose "the substantial cause" as the new standard for compensability.  Legislators 



agreed that "the substantial cause" was a lower standard than "the maj or contributing 

cause."47  The legislature's failure to adopt a specific measure is an indication of what 



the  legislature  did  not  intend  when  enacting  a  statute,48  so  we  conclude  that  the 



legislature did not intend to require that the substantial cause be a 51% or greater cause, 



or even the primary cause, of the disability or need for medical treatment. 



               Turning to the language the legislature adopted, the term "substantial" has 



nine definitions in Black's Law Dictionary, three of which appear relevant in that they 



are linked to the ideas of materiality and importance:  (1) "[o]f, relating to, or involving 



substance;  material  ";  (2)  "[r]eal  and  not 



imaginary; having actual, not fictitious, existence "; 



       45      Id. at 9:12:18-9:24:24. 



       46      Testimony of Paul Lisankie, Director, Div. of Workers' Comp. at 10:37:40- 



10:38:47, Hearing on C.S.S.B. 130(L&C) Before the Sen. Judiciary Standing Comm., 

24th Leg.,  1st Sess. (Apr. 7, 2005). 



       47      Comments  of  Sen.  Gene  Therriault  at  1:32:03-1:32:10  ("a  much  lower 



standard"), Comments of Rep. Tom Anderson at 1:32:51-1:32:55 ("a lower threshold"), 

Hearing  on  C.C.S.S.B.  130(fld  H)  Before  the  Free  Conference  Comm.  on  S.B.  130, 

24th Leg.,  1st  Special  Sess. (May 2 1, 2005) (commenting that fewer cases would fall 

through the cracks than with maj or contributing cause); Comments of Rep. Eric Croft at 

15:40-16:47  (describing  "the  substantial  cause"  as  falling  in  between  "a  substantial 

factor" and "the maj or contributing cause"), Comment of Rep. Tom Anderson at 51:38- 

52:27 (supporting the substantial cause and not maj or contributing cause), House Floor 

Debate on S.B.  130 24th Leg.,  1st Special Sess. (May 22, 2005). 



       48      See City of  Dillingham v. CH2M Hill Nw., Inc., 873 P.2d  1271,  1276-77 



(Alaska  1994) (construing legislature's rej ection of amendment allowing limitation of 

liability clauses as intent to prohibit such clauses). 



                                              -26-                                           7353 


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

and (3) "[i]mportant, essential, and material; of real worth and importance ."49  Consistent with these definitions, the language of AS 23.30.010(a) requires 



the  Board  to  consider  the  causes of  the need  for  medical  treatment  or  disability  and 



decide  (after  comparing  the  identified  causes)  which  in  its  judgment  is  the  most 



important or material cause related to that benefit. 



               The testimony of Knudsen, the assistant attorney general who helped draft 



the  statutory  language,  supports  this  interpretation.    In  addition  to  noting  that  "the 

substantial cause" was a lower standard than "the maj or contributing cause,"50 Knudsen 



testified that "the  substantial cause" contemplated the existence of many causes, "the 



substantial  cause  being  whatever  constitutes  substantial  in  the  minds  of  reasonable 

men."51  She further indicated that the language would require the Board to evaluate the 



different  causes  of the benefit requested in  order to  determine whether work was the 



substantial cause of the need for that specific benefit; the comparison the Board was to 



make was among the causes identified, not in isolation or in comparison to an abstract 

idea.52 



               The  new  standard  leaves  the  Board  discretion  to  choose  among  the 



identified causes the most important or material cause with respect to the benefit sought.  



Because the standard remains flexible it is necessarily fact-dependent.  The Commission 



decided the Board had legally erred by relying on pre-2005 case law about aggravations 



        49     Substantial, BLACK 'S LAW DICTIONARY (10th ed. 2014). 



        50     Testimony of Kristin Knudsen, Assistant Att'y Gen. at  1:32:10-1:32:51, 



Hearing on C.C.S.S.B. 130(fld H) Before the Free Conference Comm. on S.B. 130, 24th 

Leg.,  1st Special Sess. (May 2 1, 2005). 



        51     Id. at  1:32:10-1:32:31. 



        52     Id. at  1:2 1:12-1:23:22 (indicating that standard was only new in the sense 



that it required the Board to consider the different causes to determine substantiality). 



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of symptoms and by failing "to weigh all relevant causes."  We held above that the rule 



in DeYonge remains viable and now consider whether the Board weighed all relevant 



causes of Morrison's need for medical treatment at the time of the hearing.  We hold that 



it did so. 



                The  Commission  agreed  that  Morrison's  osteoarthritis  "may  have been 



aggravated by the 2014 injury," but it pointed out facts it considered more important and 



remanded the case to the Board "for the Board to weigh all factors" in determining the 



substantial cause of Morrison's need for medical treatment.  The Commission did not 



articulate a new standard for the Board to apply.  Instead, the Commission provided its 



own interpretation of Dr. Pohlman's testimony and made factual assertions about the 

evidence without providing record citations to support these assertions.53  Weighing the 



evidence is not the Commission's role:  the Act makes the Board's credibility findings 



"binding"  on  the  Commission  and  requires  the  Commission  to  uphold  the  Board's 



                                                                                                       54 

findings  "if  supported  by  substantial  evidence  in  light  of  the  whole  record."                   



"Substantial evidence is such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion."55  The Commission has previously decided it will "not 



consider whether the board relied on the weightiest or most persuasive evidence, because 



        53      For example, the Commission wrote that Dr. Pohlman indicated Morrison 



would need ongoing medical treatment from the 2004 injury without the 2014 injury.  

Dr. Pohlman indicated that Morrison had to have suffered both injuries to need medical 

treatment  at the time  of the Board hearing.  And when  a Board panel member  asked 

Dr. Pohlman whether Morrison would require treatment in the absence of a triggering 

event, the doctor answered, "It's just impossible to answer."   



        54      AS 23.30.128(b). 



        55      Pietro  v.  Unocal  Corp .,  233  P.3d  604,  610  (Alaska  2010),  quoted  in 



ARCTEC  Servs.  v.  Cummings,  AWCAC  Dec.  No.   155  at   11  (Aug.   17,  2011), 

http://labor.state.ak.us/WCcomm/memos-finals/D_ 155.pdf. 



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the determination of the weight to be accorded evidence is the task assigned to the board, 

not  the  commission."56    Nor  will  the  Commission  "reweigh  the  evidence  or  choose 



between competing inferences, as the board's assessment of the weight to be accorded 

conflicting evidence is conclusive."57 



               The Commission wrote that the Board "ignored" Dr. Pohlman's testimony 



about  responsibility  based  on  a  "pathological  approach."    We  disagree  with  the 



Commission's  assessment.    Dr.  Pohlman's  testimony  based  on  the  "pathological 



approach" was in response to a question about how he would assign responsibility if he 



were in an apportionment jurisdiction.  The Board discussed this testimony but decided 



it was not legally determinative.  We agree with the Board that apportionment testimony 



is not legally determinative under the new causation standard, even though this testimony 



may  be  a  fact  the  Board  weighs  when  it  determines  compensability.    The  Board 



considered the testimony but decided that other parts of Dr. Pohlman's testimony were 



more relevant to the issues before it.  This was consistent with the Board's role.  



               Alaska Interstate Construction maintains it fulfilled its duty to provide the 



initial  treatment  after  the  injury.    It  argues  that  the  five-month  gap  in  Morrison's 



treatment after the 2014 injury shows that he in fact recovered from that injury so that 



any later need for medical treatment was not its responsibility because it was no longer 



the substantial cause.  This is an argument about the inferences to be drawn from the 



evidence.  The Board interpreted the medical testimony differently, as it was permitted 



to do, and Morrison's testimony, which the Board found credible, supports the Board's 



interpretation.  Because the  doctors here  agreed that  symptoms  are what necessitates 



        56     McGahuey  v.  Whitestone  Logging,  Inc.,  AWCAC  Dec.  No.  054  at  6 



(Aug. 28, 2007), http://labor.state.ak.us/WCcomm/memos-finals/F_07-054.pdf. 



        57     Id. (citing AS 23.30.122). 



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treatment in osteoarthritis, it was not unreasonable to determine that Morrison's 2014 



injury, which prompted him to seek medical treatment for the right knee for the first time 



in almost 10 years, was the most important cause of his need for medical treatment at the 



time of the hearing.  The medical treatment discussed in testimony was physical therapy 



followed by viscosupplementation if needed and ultimately a possible knee replacement.  



              Alaska  Interstate  Construction  contends that the  Board  erred  legally by 



"applying a test of what was 'the last straw,' or what 'triggered' the immediate need for 



treatment" because it "directly subverts the legislative attempt to heighten the standard 



for compensability."  We do not view the Board's decision so narrowly.  Based on the 



medical  testimony,  the  Board  identified  two  possible  causes  of  Morrison's  need  for 



medical treatment at the time of the hearing.  It then considered the extent to which the 



two causes contributed to that need and decided the 2014 injury was the more important 



cause of the need for treatment then.  The legislature gave the Board discretion to assign 



a cause based on the evidence before it.  The Board did here what the statute directs. 



V.     CONCLUSION 



              We REVERSE the Commission's decision and REMAND the case with 



instructions to reinstate the Board's award. 



                                             -30-                                         7353 

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