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
...