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Childs v. Copper Valley Electric Assn. et al (9/17/93), 860 P 2d 1184
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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
HAROLD CHILDS, )
) Supreme Court File No. S-5229
) Superior Court File No.
Appellant, ) 3AN-91-1120 Civil
)
v. ) O P I N I O N
)
COPPER VALLEY ELECTRIC )
ASSOCIATION, SCOTT WETZEL ) [No. 4004 - September 17,
1993]
SERVICES, INC., and the )
ALASKA WORKERS' COMPENSATION )
BOARD, )
Appellees. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge, on
appeal from the Alaska Workers' Compensation
Board.
Appearances: William J. Soule, Law
Office of William J. Soule, Anchorage, for
Appellant. Shelby L. Nuenke-Davison, Davison
& Davison, Inc., Anchorage, Attorney for
Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Justices.
MOORE, Chief Justice.
I. INTRODUCTION
While working for Copper Valley Electric Association
(CVEA), Harold Childs inhaled urethane smoke from a tank farm
fire. Claiming that this accident caused a chronic breathing
disorder, Childs challenges a decision of the Alaska Workers'
Compensation Board (Board) denying him temporary total disability
benefits, permanent partial disability benefits, and attorney's
fees. He seeks medical benefits that CVEA offered to pay but did
not, as well as interest on this sum. He also challenges a
superior court finding that CVEA owed a penalty for untimely
payment of disability compensation but not for failure to pay
medical benefits. We affirm in part and reverse in part.
II. FACTS AND PROCEEDINGS
In April 1988 four outdoor fuel tanks at CVEA's
Glennallen power plant caught fire. During the fire Childs
inhaled smoke from burning urethane foam insulation. He was
taken to a local medical center, where he complained of pain in
his throat and chest when breathing. The medical personnel kept
him under observation for a few hours, noting that he had a raspy
voice and an occasional dry cough, but that his breathing was
unlabored and his lungs were clear. Childs returned to work the
next day, and remained at his job until late October.
Nonetheless, Childs continued to complain of chest
pains and breathing difficulties, particularly upon exertion or
exposure to strong fumes or smoke. Several times in May he
returned to the medical center. A spirometry indicated small
airway disease, which the doctor linked to the smoke inhalation
incident.
Starting in June Childs made regular visits to Dr.
Buffington Burtis, a pulmonologist. Dr. Burtis diagnosed
Childs's condition as "[u]rethane and diesel smoke bronchitis
with bronchoconstriction," with "possible hyperresponsive
sensitivity in the respiratory tract developing since the
exposure to isocyanate (urethane)."1 Dr. Burtis did not detect
a cough or tenderness in the chest wall, and tests of Childs's
pulmonary functions gave normal results.
Childs was again hospitalized in late October, this
time for severe chest pains. One test showed moderate
duodenitis,2 but a duodenal biopsy revealed no abnormalities. In
his diagnosis Dr. Burtis suspected that the chest pains were
linked to duodenitis, but he now denies such a link. Dr. Burtis
again found no tenderness in the chest wall, noted that the chest
was clear, and observed that Childs was in no apparent distress.
Subsequently Childs tried to return to work, but the manager
refused to let him come back until he was "100 percent capable of
working there."
In late November Dr. Burtis performed a water
nebulization test in order to check Childs's rate of respiratory
flow. Dr. Burtis found "a minimal reduction in all expiratory
flow rates of questionable significance." He interpreted the
test results to show some irritation and bronchoconstriction.
At about the same time, CVEA controverted payment of
further workers' compensation benefits to Childs, alleging the
absence of a causal relationship between Childs's medical
condition and the smoke inhalation episode of April.
Subsequently Childs filed an application for adjustment of his
claim with the Alaska Workers' Compensation Board.
In February 1989 Dr. Burtis referred Childs to Dr.
George Stewart for a second opinion on Childs's condition. Upon
examining Childs, Dr. Stewart attributed Childs's symptoms to
"diffuse tracheal bronchitis." Dr. Stewart performed a
fiberoptic bronchoscopy on Childs.3 This procedure revealed
"significant irritation of the airways."
Meanwhile, Childs reported that his symptoms had
intensified. His chest pains and breathing difficulties
increased upon exposure to air pollution, vehicle exhaust, cold
air, wood smoke, dust, or noxious fumes. By September 1989 these
pains were constant and got worse with exertion. Dr. Burtis
remains convinced that Childs's malady is linked to the smoke
inhalation injury.
CVEA arranged for Dr. Lee Newman to examine Childs in
January 1990. Dr. Newman conducted two tests for hyperreactivity
in the airways: a methacholine challenge and a histamine
challenge. Neither test revealed any cardiac or respiratory
abnormalities, and Dr. Newman could find no objective evidence of
pulmonary difficulties. Dr. Newman questioned the significance
of Dr. Burtis's water nebulization test.
Though Dr. Newman did not totally rule out a link
between the smoke inhalation incident and Childs's continued
problems, he did not think that such a link was at all likely.
He stated that "industrial bronchitis as seen in this gentleman
can occur in the absence of any measurable pulmonary function
abnormalities." He also stated that at the time of Dr. Stewart's
examination Childs probably had bronchitis tied to urethane smoke
inhalation. Nonetheless, Dr. Newman concluded that any such
bronchitis had dissipated in the time between Dr. Stewart's tests
and his own. He roughly estimated May 1989 as the date when
Childs's bronchitis finally resolved. Dr. Newman suggested that
Childs's chest pains had a nonrespiratory cause such as
duodenitis or costochondritis.4
In April 1990, after receiving Dr. Newman's report,
CVEA told Childs's private insurer that Childs would receive 26
weeks of temporary total disability (TTD) benefits. CVEA also
indicated that it would pay Childs's work-related medical bills.
The TTD payments were not forthcoming until after Childs's
attorney raised the issue at a prehearing conference. In August
1990 CVEA paid TTD benefits for the period from October 1988
through April 1989. As of the date of the Board hearing, CVEA
had not paid the promised medical benefits. CVEA has continued
to controvert all benefits claimed beyond April 1989.
In September 1990 CVEA had another pulmonologist, Dr.
Lawrence Repsher, examine Childs's medical records. Dr. Repsher
concluded that Childs "suffered no significant respiratory or
other injury as a result of the episode of what was clearly
trivial smoke inhalation." Dr. Repsher also stated that Childs
displayed no evidence of chronic bronchitis, hyperreactive
airways disease, or any other respiratory problem resulting from
the smoke inhalation episode.
Though Dr. Repsher never actually examined Childs, he
concluded that Dr. Newman's methacholine test showed no evidence
of hyperreactive airways or chronic bronchitis. Dr. Repsher
discounted the significance of Dr. Burtis's water nebulization
test and said that no one uses such a procedure to test pulmonary
functions. He also took sharp issue with Dr. Newman's theory
that Childs could have a respiratory condition despite objective
tests indicating the contrary. Dr. Repsher asserted that Dr.
Newman "basically stands alone in that belief and has no medical
evidence of any kind to support that position."
The Board conducted a hearing on Childs's claim in
October 1990. Childs relied on the testimony of Drs. Burtis and
Newman to support his claim. CVEA also relied on Dr. Newman's
testimony, and additionally relied on the testimony of Dr.
Repsher. The Board limited the time for witness testimony
to the amounts that counsel for the parties estimated before the
hearing started. After the testimony of the first few witnesses
ran overtime, the Board limited the time for the remaining
witness testimony. Objecting that under the time limits he could
not present rebuttal evidence, Childs made an offer of proof as
to what his rebuttal witnesses would have testified.
The Board found that after April 1989 Childs's
condition was no longer related to his smoke inhalation injury.
The Board weighed the testimony of Drs. Repsher and Newman more
heavily than that of Dr. Burtis, and rejected Childs's assertion
that Dr. Newman's testimony supported his claim. In a subsequent
hearing, the Board awarded Childs interest on the TTD benefits
that CVEA paid in August 1990 for the period from October 1988
through April 1989. However, the Board refused to assess a 20
percent penalty for delayed payment.
The superior court affirmed the Board on all issues
except that of the 20 percent penalty. Relying on this court's
recent holding in Harp v. ARCO Alaska, Inc., 831 P.2d 352, 357-59
(Alaska 1992), Judge Michalski imposed the penalty for CVEA's
delayed payment of the TTD benefits. Judge Michalski refused to
impose a penalty on unpaid medical benefits, concluding that
medical benefits were not compensation for the purposes of
awarding a penalty. Childs appeals.
III. DISCUSSION
A. Rebuttal of the Presumption of Compensability
Childs first argues that CVEA failed to rebut the
presumption of compensability set out in AS 23.30.120(a). To
reach this conclusion Childs relies on language in Grainger v.
Alaska Workers' Compensation Board, 805 P.2d 976 (Alaska 1991):
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 (emphasis added) (footnote omitted). Childs reads
Grainger to require that medical experts not only rule out a link
between employment and disability but also present an alternative
diagnosis. He claims that because CVEA's experts, Drs. Repsher
and Newman, offered no alternative explanation for his continued
illness, the Board erred in finding that their testimony
constituted substantial evidence.5
Childs's reliance on Grainger is misplaced. Grainger
simply restates the rule that an employer may rebut 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." Veco,
Inc. v. Wolfer, 693 P.2d 865, 872 (Alaska 1985); see also Adamson
v. University of Alaska, 819 P.2d 886, 892 n.9 (Alaska 1991).
Accordingly, medical testimony cannot constitute substantial
evidence if it simply points to other possible causes of an
employee's injury or disability, without ruling out work-related
causes. See Grainger, 805 P.2d at 977.
In this case, the opinions of Drs. Newman and Repsher
expressly ruled out the smoke inhalation incident as the cause of
Childs's present condition. An employer has always been able to
rebut the presumption of compensability with an expert opinion
that "the claimant's work was probably not a substantial cause of
the disability." Big K Grocery v. Gibson, 836 P.2d 941, 942
(Alaska 1992). If medical experts have ruled out work-related
causes for an employee's injury, then Wolfer and Grainger do not
require that these experts also offer alternative explanations.
Moreover, the fact that Dr. Newman, like many medical
professionals, did not state his opinion in absolute terms does
not mean that his testimony was inconclusive or that he failed to
exclude smoke inhalation as a cause of Childs's condition. See
id.; 3 Arthur Larson, The Law of Workmen's Compensation 80.32,
at 15-834 through -835 (1992) ("The weight of [medical] testimony
. . . should not be too sharply discounted because of the
disposition of the highly trained scientific mind to refrain from
unqualified statements or opinions on such matters as
causation."). Therefore, the Board did not err in finding that
CVEA had presented substantial evidence to overcome the
presumption of compensability.
B. Substantial Evidence Issues
Next, Childs argues that the Board's decision was not
based on substantial evidence. In particular, Childs argues that
because Dr. Repsher did not personally examine him, the Board
erred in giving substantial weight to the doctor's testimony.
When examining a Board determination under the
substantial evidence test, we do not reweigh the evidence.
Morrison v. Afognak Logging, Inc., 768 P.2d 1139, 1141 (Alaska
1989). If medical experts disagree upon the ultimate cause of an
employee's injury, then as a general rule, "it is undeniably the
province of the Board and not this court to decide who to believe
and who to distrust." Kessick v. Alyeska Pipeline Serv. Co., 617
P.2d 755, 758 (Alaska 1980); see also Miller v. ITT Arctic
Servs., 577 P.2d 1044, 1048-49 (Alaska 1978). However, in Black
v. Universal Services, Inc., 627 P.2d 1073 (Alaska 1981), we held
that because a psychiatrist "had no opportunity to examine [the
employee] in any depth, and because his conclusions [were]
contrary to those of the numerous physicians who treated her,"
his report therefore did not constitute substantial evidence in
support of a Board denial of benefits. Id. at 1075 (footnote
omitted). We held that the general rule against reweighing the
evidence does not permit a court to "abdicate its reviewing
function and affirm a Board decision that has only extremely
slight supporting evidence." Id. at 1076.
Childs argues that because Dr. Repsher only examined
Childs's medical records, and not Childs himself, the doctor's
testimony is analogous to the psychiatrist's report in Black.
However, Childs's case is distinguishable from Black, because Dr.
Repsher's opinion does not stand alone. Dr. Newman also
concluded that Childs's current condition is unrelated to the
smoke inhalation episode. In addition, numerous objective tests
indicated no respiratory abnormalities. Therefore, the testimony
of Drs. Newman and Repsher constituted substantial evidence to
support the Board's conclusion that Childs's condition is not
work-related, and the Board did not err by weighing this
testimony as it did.6
C. Equitable Estoppel
Childs argues that because CVEA paid some of Childs's
initial medical bills and also paid TTD benefits for October 1988-
April 1989, principles of equitable estoppel therefore prevent
CVEA from denying further liability. Judge Michalski rejected
this argument on public policy grounds, concluding that to do
otherwise "would encourage every employer to dispute an
employee's claim to the fullest extent possible, since any
payment of benefits might be seen as a concession of liability."
Judge Michalski is correct. See, e.g., Frasure v. Agripac, Inc.,
619 P.2d 274, 278-79 (Or. 1980); 2B A. Larson, supra, 79.43, at
15-426.107 through .114 (1989).
D. Due Process Concerns
Childs contends that the Board's time limits on the
presentation of evidence deprived him of due process of law. The
Board concluded that Childs had more than enough time to put on
his evidence, given that most workers' compensation hearings do
not last as long as this one did.
The Board did not expressly deny Childs the right to
rebut. The Board simply held both parties to the time that they
estimated to be necessary for presenting their cases. The fact
that Childs did not budget his time efficiently, so that he ran
out of time to present rebuttal testimony, does not amount to the
denial of his right to rebut.
Although a claimant has a right to a hearing, Summers
v. Korobkin Constr., 814 P.2d 1369, 1371 (Alaska 1991), the
hearing need not be a full, trial-type procedure. The Board may
place reasonable time limits on testimony in order to manage its
own docket. Childs offers no case authority indicating that such
limits violate due process. Moreover, the Board examined
Childs's offer of proof, and found that the outcome of the
hearing would not have changed, even if Childs had presented all
the evidence that he wished. Therefore, the Board's time
restrictions do not amount to a due process violation.
E. Attorney's Fees for CVEA's Voluntary TTD Payments
Childs argues that he should be awarded attorney's fees
for his efforts in obtaining the TTD benefits that CVEA
voluntarily but belatedly paid. The superior court denied these
fees, saying that whether to award them was within the discretion
of the Board. The court also held that because Childs was not
successful in his claim, the Board properly denied attorney's
fees, even as to benefits that were at first controverted but
later paid.
The Alaska Workers' Compensation Act sets up a formula
for payment of minimum fees where claims have been controverted.
See AS 23.30.145(a). Unlike attorney's fees awarded under Alaska
Civil Rule 82, which are intended to provide reasonable partial
compensation, attorney's fees in workers' compensation cases
should be fully compensatory and reasonable, in order that
injured workers have competent counsel available to them. Cortay
v. Silver Bay Logging, 787 P.2d 103, 108 (Alaska 1990).
Therefore, AS 23.30.145 allows the court considerably less
discretion in setting fees than does Rule 82.
Here, CVEA controverted Childs's compensation in
November 1988, and Childs had to file a claim to recover these
benefits. Subsequently, CVEA voluntarily paid benefits for the
period from October 1988 through April 1989. CVEA's payment,
though voluntary, is the equivalent of a Board award, because the
efforts of Childs's counsel were instrumental to inducing it.
See State, Dep't of Highways v. Brown, 600 P.2d 9, 12 (Alaska
1979) (holding that where employer apparently thought that
resisting the claim any further would lead to a Board decision in
the employee's favor, a voluntary payment of benefits constitutes
an "award"). Therefore, the Board should have awarded Childs
attorney's fees on the amount of the voluntary payment pursuant
to AS 23.30.145(a).7
In addition, CVEA delayed payment of TTD benefits that
were due until August 1990. Where an employer fails to pay
compensation due or resists paying compensation, AS 23.30.145(b)
directs an award of reasonable attorney's fees and costs to
successful claimants. Thus Childs should receive an award of
reasonable fees and costs, because the efforts of his attorney
were necessary to inducing CVEA to finally pay the benefits.
Though CVEA asserts that it already paid the attorney's fees
applicable to the delayed payment of TTD benefits, the Board
should ascertain if they are reasonable pursuant to the statute.
F. Unpaid Medical Benefits
Though Childs presented evidence that CVEA did not make
promised payments for work-related medical expenses, neither the
Board nor the superior court directly addressed this matter.
Childs now seeks an order directing CVEA to pay these medical
benefits. Though CVEA has not directly challenged Childs's
evidence, the Board made no findings as to how much CVEA owes.
Therefore, we remand this question to the Board for a calculation
and award of the medical benefits due to Childs.
In addition, Childs seeks interest, penalties, and
attorney's fees on any award of unpaid medical benefits. We
shall address each of these questions separately.
1. Interest
Childs argues that interest is due on both the unpaid
medical benefits and the transportation expenses that the Board
awarded Childs. The Board awarded interest on the belated
payment of TTD benefits alone. In response, CVEA apparently
argues that because medical benefits have no due date, an award
of interest for untimely payment of these benefits would be
inappropriate.
Medical benefits are part of a Board award of
compensation for the purpose of awarding prejudgment interest.
Moretz v. O'Neill Investigations, 783 P.2d 764, 765-66 (Alaska
1989). Interest awards are a way to recognize the time value of
money, and they give "a necessary incentive to employers to
release . . . money due." Id. at 766.
CVEA offered to pay Childs's medical expenses for the
period from October 1988 through April 1989. CVEA has not done
so. Though in this case CVEA's offer of payment was voluntary,
one may interpret it as the equivalent of an award, just as a
voluntary payment can constitute an award for the purpose of
granting attorney's fees. See Brown, 600 P.2d at 12. In
addition, the Board expressly awarded transportation expenses.
Therefore, CVEA owes interest both on the medical benefits that
it offered to pay but did not and on the award of transportation
costs.
2. Penalties
Childs also contends that the Board erred in failing to
assess CVEA a penalty of 20 percent of the value of medical
expenses owed Childs but not paid. The Board held that medical
benefits were not "compensation"for the purpose of statutory
penalty provisions, and the superior court agreed.
In Williams v. Safeway Stores, 525 P.2d 1087 (Alaska
1974), we discussed the difficulty of defining "compensation"
under the Workers' Compensation Act:
Initially, AS 23.30.265(8) defines
"compensation"for the purposes of the Act
without mention of medical benefits, and [AS
23.30.265(20)] defines "medical and related
benefits" in mutually exclusive
language . . . . However, other sections of
the Act . . . use the word "compensation" so
that the only reasonable reading of the word
would include medical benefits.
Id. at 1089 n.6. Although we generally construe "compensation"
to include medical benefits, see Moretz, 783 P.2d at 766 & n.2,
we occasionally will reach the opposite result if statutory
language strongly suggests a narrower reading. See Providence
Wash. Ins. Co. v. Busby, 721 P.2d 1151 (Alaska 1986) (per
curiam).
Childs's claim requires us to construe AS 23.30.155(b)
and former AS 23.30.155(e):8
(b) The first installment of
compensation becomes due on the 14th day
after the employer has knowledge of the
injury or death. . . . Subsequent
compensation shall be paid in installments,
every 14 days, except where the board
determines that payment in installments
should be made monthly or at some other
period.
. . . .
(e) If any installment of
compensation payable without an award is not
paid within seven days after it becomes due,
as provided in (b) of this section, there
shall be added to the unpaid installment an
amount equal to 20 percent of it.
Interpreting similar statutory language, some jurisdictions have
excluded medical benefits from "compensation," on the grounds
that medical benefits are not typically paid by means of
installments. See, e.g., International Paper Co. v. Kelley, 562
So. 2d 1298, 1302 (Miss. 1990).
We implicitly rejected such a narrow reading in Croft
v. Pan Alaska Trucking, Inc., 820 P.2d 1064 (Alaska 1991). At
issue was the meaning of the first sentence of AS 23.30.155(j),
which allows an employer to reimburse itself for overpayments of
compensation by withholding up to 20 percent of amounts due from
pending installments of compensation. The critical sentence was:
"If an employer has made advance payments or overpayments of
compensation, the employer is entitled to be reimbursed by
withholding up to 20 percent out of each unpaid installment or
installments of compensation due." AS 23.30.155(j). Thus
paragraph (j), like paragraph (e), uses the term "installments."
Nonetheless, we concluded that an award of attorney's fees
constituted "compensation." Croft, 820 P.2d at 1067. Although
our focus in Croft was on the first use of "compensation"in the
quoted sentence rather than on the second use, it is our view
that the term has the same meaning in both its usages within this
sentence.
Furthermore, interpreting "compensation"in paragraph
(e) to include medical benefits serves important public policy
goals. The penalty provision creates an incentive for the
insurance carrier to timely pay an employee the compensation due.
Otherwise, a carrier could make promises to pay medical benefits
and then breach them at will, as apparently occurred here.
Therefore, we hold that "compensation"under AS 23.30.155(e)
includes medical benefits, and we reverse the findings of the
Board and the superior court on this matter.
3. Attorney's fees
The Board should award Childs attorney's fees for
whatever medical benefits CVEA owes. Like fees for the TTD
benefits that CVEA paid, attorney's fees for CVEA's proffered
medical benefits are appropriate to the extent that the work of
counsel was necessary to elicit CVEA's concession.
G. Childs's Request for Attorney's Fees on the Full Claim
Finally, Childs argues that because he prevailed before
the superior court on the question of assessing a penalty on
belated TTD payments, he therefore should get full attorney's
fees for his whole claim, even though he lost on most of his
other issues.
Childs is mistaken. Alaska Appellate Rule 508(g)(2)
calls for an award of "full reasonable attorney's fees . . . to a
successful claimant"in an administrative appeal. In order to
recover fees under AS 23.30.145(b), which like Rule 508(g)
directs a fee award to a "successful"claimant, the employee must
succeed on the claim itself, and not a collateral issue. Adamson
v. University of Alaska, 819 P.2d 886, 895 (Alaska 1991).
Childs lost on his main claim: his effort to win those
disability and medical benefits that CVEA still controverted.
Therefore, the superior court did not err in denying attorney's
fees for the whole claim.
V. CONCLUSION
Substantial evidence supported both the Board's finding
that CVEA rebutted the presumption of compensability and the
Board's finding that Childs's current disability was not work-
related. Though CVEA voluntarily paid some benefits, principles
of equitable estoppel do not prevent it from disputing liability
for the remainder. Finally, the conduct of the hearing did not
deprive Childs of due process. We therefore uphold the decision
of the superior court on these matters.
However, Childs is entitled to interest and a 20
percent penalty on medical expenses that CVEA volunteered to pay
but did not. He is also entitled to an award of interest on the
transportation expenses. We therefore reverse the decision of
the superior court on these questions, and we remand the case for
a determination of the amount of medical benefits owed and a
calculation of the penalty and interest. Though the court
properly denied him full attorney's fees on the administrative
appeal, Childs is entitled to a Board award of full reasonable
attorney's fees for those matters on which he has prevailed:
CVEA's payment of TTD benefits, interest payments, and the 20
percent penalty. On remand, the superior court should adjust the
award of fees accordingly.
AFFIRMED in part, REVERSED in part, and REMANDED for
proceedings in accordance with this opinion.
_______________________________
1. "Hyperresponsive sensitivity" is not a recognized
medical term, but rather a term that Dr. Burtis created in order
to explain Childs's malady.
2. Duodenitis is an inflammation of the intestinal tract
close to the stomach.
3. A bronchoscopy is a procedure in which the physician
passes a tube into the bronchial passages and visually inspects
the airways by means of fiberoptic technology.
4. Costochondritis is an inflammation of the junction
between the ribs and the cartilage on the chest wall.
5. Like any other Board decision, a finding that the
employer has rebutted the presumption of compensability must be
based on substantial evidence. Veco, Inc. v. Wolfer, 693 P.2d
865, 869 (Alaska 1985). Substantial evidence is that which a
reasonable mind, viewing the record as a whole, might accept as
adequate to support the Board_s decision. Morrison v. Afognak
Logging, Inc., 768 P.2d 1139, 1141 (Alaska 1989). Once rebutted,
the presumption of compensability drops out, and the employee
must prove each element of her claim by a preponderance of the
evidence. Wolfer, 693 P.2d at 870.
We independently review the evidence to ascertain
whether the Board properly found that the employer presented
substantial evidence to rebut the presumption of compensability.
Id. at 869. Because the presumption shifts only the burden of
production and not the burden of persuasion, we examine the
evidence tending to rebut the presumption by itself. Id.
6. Childs also argues that his injury amounted to a
compensable disability, and that CVEA failed to show the
availability of employment for a man of his skills. Because we
find no error in the Board's threshold finding that Childs's
condition was not work-related, we do not reach these questions.
7. CVEA argues that its voluntary payments were the result
of reports and an examination that it, not Childs, arranged.
This fact is irrelevant if this work was conducted in response to
Childs's claim before the Board and Childs's attorney was
instrumental in the claim's preparation.
CVEA also argues that Childs's present counsel was not
involved in the case when the reports and examination were
performed. Again, this fact is irrelevant. The attorney's fee
award is to Childs, not to any particular attorney. How Childs
might allocate this award is a matter for him and his attorneys
to settle. Cf. Moretz v. O'Neill Investigations, 783 P.2d 764,
765 (Alaska 1989) (holding that whether claimant or his private
insurer eventually gets prejudgment interest awarded to claimant
is a matter for those two parties to resolve).
8. The 1988 amendments to the Worker's Compensation Act
increased the penalty to 25 percent, but did not otherwise change
this provision. See ch. 79, 26, SLA 1988.
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