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Huit v. Ashwater Burns Inc.

Supreme Court of Alaska

June 17, 2016

JOSEPH D. HUIT, Petitioner,
v.
ASHWATER BURNS, INC., et al., Respondents.

         Alaska Workers' Compensation Appeals Commission No. 13-016

          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.]

          OPINION

          WINFREE, Justice.

         I. INTRODUCTION

         This appeal presents our first opportunity to consider whether City & Borough of Juneau v. Thibodeau, [1] holding that a superior court decision remanding a case to an administrative agency is not a final judgment for purposes of appeal to this court, [2] 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 superior court's final resolution of the case then could appeal to this court.[3] Construing 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]

         In 2005 the legislature created the Commission, [5] a quasi-judicial agency in the executive branch[6] authorized to hear appeals from decisions of the Board, [7] and gave parties to a Commission decision the right to appeal a "final" decision to this court.[8] The 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.

         1. Pre-2005 analysis

         For work-related injuries before November 7, 2005, [11] application of the presumption of compensability consisted of three possible steps.[12] At the first step the employee was required to attach the presumption that the disability was work related by "establish[ing] a preliminary link between his disability and his employment."[13] To establish the link the employee was required to offer " 'some evidence' that the claim arose out of the worker's employment."[14] 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 factor in causing the disability."[15] We called the two methods of rebutting the presumption "affirmative evidence" and "negative evidence."[16] An employer could re but the presumption by presenting a qualified expert's testimony that the claimant's work was probably not a substantial cause of the disability.[17] 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]

         2. The 2005 amendments

         In 2005 the legislature repealed and reenacted AS 23.30.010, [22] 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:

Except as provided in (b) of this section, [23] 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 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 by showing "that a cause other than employment played a greater role in causing the disability . . . ."[29]

         The Commission decided here that the employer had metits burden through expert opinions not identifying an alternative cause but 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 - they got worse. On December 9 he returned to the emergency room, where he was diagnosed with endocarditis;[30] he was hospitalized for several weeks while he received antibiotics to treat the infection. The emergency room physician wrote that Huit had "spontaneous endocarditis"[31] and commented that he "had no history of IV drug abuse." 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 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 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 Boise Veterans Administration (VA) beginning in 2013.[33] Based on Huit's reports the 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 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 question.[34] It found that Huit had attached the presumption through his testimony and 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 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 firstconsidered Dr. Semler's testimony; according to the Board, 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, andDr. Leggett, the employer's infectious-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 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 Medical Center[35] "a narrow reading" that was nonetheless "understandable, given 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 was identified as the one-and-only potential work-related cause 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.

         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 Commission, were view the Commission's decision rather than the Board's.[36] "We apply our independent judgment to questions of law that do not involve agency expertise."[37]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 purpose."[38] 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 more convincing the evidence of contrary legislative purpose or intent must be."[39] We review denovo the Commission's legal conclusion that substantial evidence supports the 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 not a final judgment for purposes of appeal to this court[41]- the Commission's decision would not be a final decision because the Commission remanded the case to the Board for further factual findings.[42] We ordered the parties to provide supplemental briefing 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 Thibodeau concerned appeals from superior court orders[43] and the Commission is an 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 Statute 23.30.128(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 from the Board; that written decision is called "the final commission decision."

         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 twice in the same act has the same meaning, [46] and it would make the entire decision in 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 court[47] 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 meaning[49] and the corollary that the legislature is aware of existing case law when it enacts or modifies the law.[50]

         We have held that the test for finality for purposes of judicial review of administrative decisions "is essentially a practical one"[51] that considers "whether the agency has completed its decisionmaking process[] and whether the result of that process is one that will directly affect the parties."[52] We have instructed that in deciding whether 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 23.30.129[55] and intended a "final" decision in that section to have the same meaning.

         Two agencies are involved in the administrative process of a workers' compensation decision rather than one, but they are integrally related, with Commission decisions serving as legal precedent for both agencies.[56] And while the Commission may 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 has not treated such cases as "final, "[58] 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 the Commission's resolution of the merits 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 merits appeal, not as a separate case, [59] so a decision about attorney's fees might never 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 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 administrative process more expeditious and consistent.[63] Applying the rule in 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 retain "the same procedural rights of review that they had in the superior court."[64] The 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 appeals[65] and permits complete development of the agency record before judicial review.[66] 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 precedent for both the Board and the Commission unless reversed by this court;[68] the 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 of Workers' Compensation to appeal in Commission proceedings and permitted the Division's director to appeal a compensation order to the Commission when a party in interest is not represented and the order "concerns an unsettled question of law."[70]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 review will materially advance the termination of the litigation, [71] we follow our precedent to treat the appeal as a petition for review[72] 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 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 create an irrebuttable presumption. It asserts that because the statute now unambiguously provides that compensation is payable only when, in relation to other causes, employment is "the substantial cause"[73] of a disability or need for medical treatment, at 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 ...


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