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Big K Grocery v. Gibson (9/4/92), 836 P 2d 941
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
BIG K GROCERY and ALASKA )
NATIONAL INSURANCE CO., ) Supreme Court No. S-4521
)
Petitioners, ) Trial Court No.
) 3AN-90-3010 Civil
v. )
) O P I N I O N
PATSY GIBSON and INDUSTRIAL )
INDEMNITY, )
)
Respondents. ) [No. 3882, Sept. 4, 1992]
______________________________)
Petition for Review from the Superior
Court of the State of Alaska, Third Judicial
District, Anchorage, Joan M. Katz, Judge.
Appearances: Robert J. McLaughlin,
Faulkner, Banfield, Doogan & Holmes, Seattle,
for Petitioners. Joseph A. Kalamarides,
Kalamarides & MacMillan, Anchorage, for
Respondent Gibson.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
MATTHEWS, Justice.
In this workers' compensation case, the Alaska Workers'
Compensation Board (the board) concluded that Patsy Gibson had
not proven that her employment with Big K Grocery from 1983 until
1988 was a substantial factor in bringing about her present
disability. Gibson appealed to the superior court which
initially affirmed the board. However, after reviewing our
recently issued decision in Grainger v. Alaska Workers'
Compensation Board, 805 P.2d 976 (Alaska 1991), the superior
court vacated its initial decision and reversed the board. We
granted Big K's petition for review from this decision and
reverse.
The critical testimony presented before the board was
that of Doctor Gerald Keane. He testified that it was probable
that Gibson's current symptoms were the result of a 1980
operation which in turn was caused by a 1978 accident. However,
he could not preclude the possibility that Gibson's work for Big
K between 1985 and 1988 accelerated her pre-existing condition.1
The language relied on by the superior court from
Grainger is a formulation as to how an employer may rebut the
presumption of compensability.2 We stated in Grainger:
Once the presumption arises, an employer
can overcome it by presenting substantial
evidence that either (1) provides an
alternative explanation which, if accepted,
would exclude work related factors as a
substantial cause of the disability; or (2)
directly eliminates any reasonable
possibility that employment was a factor in
causing the disability.
Id. at 977 (footnote omitted). As authority Grainger cited
Fireman's Fund American Insurance Companies v. Gomes, 544 P.2d
1013, 1016 (Alaska 1976) and Veco, Inc. v. Wolfer, 693 P.2d 865,
872 n.9 (Alaska 1985).
In Wolfer the rebuttal methods were expressed as
follows: "A party may overcome the presumption of compensability
either by presenting affirmative evidence that the injury is not
work- connected or by eliminating all possibilities that the
injury was work-connected." 693 P.2d at 872. Similarly, Gomes
expressed the first of the alternative methods in terms of
production of "affirmative evidence"indicating that the injury
or death was not work connected. 544 P.2d at 1016.
It has always been possible to rebut the presumption of
compensability by presenting a qualified expert who testifies
that, in his or her opinion, the claimant's work was probably not
a substantial cause of the disability. See, e.g., Burgess
Constr. Co. v. Smallwood, 698 P.2d 1206, 1209, 1211 (Alaska 1985)
(holding that employer rebutted presumption where a medical
expert testified that although there was a possibility that the
employee's work aggravated his renal failure, the renal failure
was probably the natural result of a progressive disease);
Beylund v. Matanuska Valley Farmers Coop. Ass'n, 391 P.2d 176,
177 (Alaska 1964) (holding that employer rebutted presumption
when a medical expert testified that it was improbable that the
employee's fall at work aggravated a pre-existing brain disease,
even though it was impossible to completely rule out the
possibility). Using the formulation of Gomes and Wolfer, such
testimony is affirmative evidence that an injury is not work
connected. In the perhaps less clear phraseology of Grainger, it
is an alternative explanation which, if accepted, excludes work-
related factors as a substantial cause of the injury.
For these reasons we conclude that the superior court
erred and that the board's decision was supported by substantial
evidence.
REVERSED and REMANDED to the superior court for further
proceedings consistent with this opinion.
_______________________________
1 Dr. Keane was asked: "Doctor, can you preclude the
possibility that her work between 1985 and 1988 caused an
acceleration of her pre-existing condition?" He answered: "I
would say that I could not preclude the possibility, but that the
probability is -- the strong probability is that it is the result
of the other process as I mentioned earlier. As to whether there
is some possibility, I would say that that is the case, yes."
2 AS 23.30.120(a)(1) provides that in the absence of
substantial evidence to the contrary, the law presumes that the
employee's disability is work-related.
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