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Tolbert v. Alascom (3/19/99), 973 P 2d 603
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Notice: This opinion is subject to correction before publication in the
Pacific Reporter. Readers are requested to bring errors to the attention
of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska
99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
DARETHA TOLBERT, )
) Supreme Court No. S-8038
Appellant, )
) Superior Court No.
v. ) 3AN-95-6990 CI
)
ALASCOM, INC., ) O P I N I O N
)
Appellee. ) [No. 5095 - March 19, 1999]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge Pro Tem.
Appearances: Charles W. Coe, Anchorage, for
Appellant. Shelby L. Nuenke-Davison,
Davison & Davison, Inc., Anchorage, for
Appellee.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
BRYNER, Justice.
Daretha Tolbert filed four workers' compensation claims
against her employer, Alascom, Inc., alleging work-related injuries
to her hands. The Alaska Workers' Compensation Board denied these
claims, finding that Tolbert either had shown no compensable injury
or had failed to prove that her injuries were work related. The
superior court affirmed. As to three of the claims, we conclude
that Tolbert presented sufficient evidence to raise a presumption
of work-related injuries and that Alascom failed to rebut this
presumption.
I. FACTS AND PROCEEDINGS
A. Tolbert's Original Claim
Daretha Tolbert began working for Alascom in 1982 as a
telephone operator. Her job required at least some repetitious use
of a keyboard, although the parties dispute how much keyboarding
was involved. Between 1982 and 1989, she developed bilateral
carpal tunnel syndrome, requiring her to undergo multiple carpal
tunnel release surgeries. Tolbert sought to recover workers'
compensation for what she maintained was a job-related impairment.
The Board found that her claims were barred by
AS 23.30.100(a) and (d) as a result of her delay in notifying
Alascom that her injuries were job related. The superior court
affirmed the Board's decision in July 1991; we affirmed the
superior court's holding in March 1992.
B. Tolbert's Subsequent Claims in 1992-1994
Although our March 1992 decision affirming the denial of
Tolbert's original claim barred her from any potential recovery
based on her existing carpal tunnel syndrome, it did not bar her
from claiming benefits for subsequent work-related incidents that
aggravated her condition or caused new injuries to her hand.
Between 1992 and 1994, Tolbert filed four claims with the Board,
alleging that her continued work with Alascom aggravated her
existing hand condition or otherwise hurt her hands.
In one claim, Tolbert reported a mishap at work in
June 1992 in which an opening door slammed against her right hand.
In three other claims, she asserted that repetitive hand movements
required by her keyboarding job caused her to experience pain,
numbness, and swelling in her hands in February of 1993 and on
June 1 and 14, 1994. In these latter claims, Tolbert alleged
permanent impairment in the form of tendinitis or aggravation of
her carpal tunnel syndrome; she sought reimbursement for medical
care related to these problems and benefits for temporary total and
permanent partial disability. Following a hearing, the Board
denied all of her claims. The superior court affirmed. Tolbert
appeals.
II. DISCUSSION
A. Standards of Review
When the superior court has acted as an intermediate
court of appeal, we review the merits of the administrative
agency's decision without deference to the superior court's
decision. 1 We review questions of law involving agency expertise
under the "reasonable basis"test 2 and those not involving any
particular expertise under the substitution of judgment standard. 3
And we review determinations of fact by an administrative agency
under the "substantial evidence"standard, 4 but consider "[t]he
question of whether the quantum of evidence is substantial [to be]
a legal question."5
B. The Board Did Not Err in Denying Tolbert's Claim for the
1992 Injury.
Tolbert alleged that her right hand was injured in
June 1992 by an opening door. She sought compensation for medical
payments and an award of benefits for permanent partial disability.
The Board held that Tolbert had raised a presumption of
compensability as to this claim by showing that she had suffered
either a contusion or a possible aggravation of tendinitis; the
Board further found that Alascom had failed to overcome this
presumption. The Board nevertheless declined to award Tolbert any
benefits, concluding that she had failed to produce sufficient
evidence to support an award.
1. The Board did not err in denying medical benefits to
Tolbert.
The only evidence Tolbert presented to prove medical
expenses stemming from her June 1992 injury consisted of her own
testimony; she offered little more than a recounting of the money
she owed to certain medical providers. But Alascom's claims
adjuster denied having ever received any of Tolbert's medical
bills. While the Board viewed the adjuster's testimony as
credible, it found Tolbert's testimony both vague and lacking in
documentary support. The Board further determined that, because
Tolbert failed to submit the bills to Alascom at all, much less in
the form required by 8 Alaska Administrative Code (AAC) 45.082(d),
and, independently, because she failed to submit such bills to the
Board, it lacked sufficient evidence upon which to base an award of
medical benefits.
Tolbert argues that she did not fail to comply with 8 AAC
45.082(d), because that subsection only governs the form and not
the time of submission of medical bills to the employer. According
to Tolbert, the Board should have left the hearing record open to
allow Tolbert to submit her medical bills in proper form. Alascom
replies that Tolbert has waived the right to submit these bills by
failing to request either a continuance of the hearing or that the
record remain open so that medical bills could be submitted. We
conclude that the record supports the Board's ruling that Tolbert
failed to present sufficient evidence on this issue.
A presumption of compensability applies to all workers'
compensation claims; 6 if the presumption remains unrebutted, the
Board must find that the claim is compensable. 7 The worker is thus
freed from having to prove (1) that "but for"the employment the
disability would not have occurred, and (2) that reasonable persons
would regard the employment as a cause of the injury and attach
responsibility to it. 8 But the presumption of compensability does
not free an injured worker from the burden of introducing evidence
as to the extent of the injury and the amount of medical expenses. 9
Allocation of this burden to the claimant makes sense because the
extent of injury and amount of medical expenses are unique in each
case, and the worker often has greatest access to such
information. 10 Because medical expenses are not presumed, a
claimant has the burden of proving them by a preponderance of the
evidence. 11
Tolbert failed to meet this burden. Although she
testified that she owed certain medical professionals money, she
failed to link these debts to treatment of the 1992 injury. From
the time of injury in June 1992 to her hearing in June 1995, she
had ample time to gather this evidence. Despite this three-year
interval, she obtained no documentation of her medical expenses.
At the time of the hearing, Tolbert's counsel expressed belief
that the bills either had already been placed in the record or were
in Alascom's possession. But even after discovering otherwise,
Tolbert's counsel failed to submit the bills or even to request
that the record remain open to accommodate later submission.
Instead, counsel opted to proceed with Tolbert's testimony as the
only evidence on expenses. 12
We conclude that, given these circumstances, the Board
did not abuse its discretion by failing to order sua sponte that
the record remain open for Tolbert to submit her medical bills.
2. The Board did not err in denying Tolbert's claim of
permanent partial impairment.
Tolbert argues that the Board's refusal to award
permanent partial impairment (PPI) benefits for the June 1992
incident is not supported by the record. But the experts who
testified about the incident agreed that its effects were only
temporary and did not aggravate Tolbert's carpal tunnel syndrome.
Tolbert's own physician, Dr. Lipke, testified that the 1992 injury
caused a contusion. He also testified that the contusion could
lead to tendinitis, but he never attributed Tolbert's tendinitis to
this incident, and he described her tendinitis as intermittent and
recurring, rather than permanent. In fact, Dr. Lipke expressly
testified that tendinitis translates into no PPI rating under the
American Medical Association Guides to the Evaluation of Permanent
Improvement. 13 Yet such a rating is a prerequisite to an award of
PPI benefits. 14 Given Dr. Lipke's testimony, we conclude that the
Board's refusal to award Tolbert PPI benefits is supported by
substantial evidence.
C. The Board Erred in Denying Tolbert's 1993 and 1994 Claims.
1. The testimony concerning Tolbert's carpal tunnel
syndrome and tendinitis
Tolbert filed one claim in February 1993 and two claims
in June 1994, asserting that the repetitious keyboarding she
performed for Alascom was causing swelling, numbness, and pain in
her hands and arms. Tolbert initially asserted that these symptoms
were caused by aggravation of her pre-existing carpal tunnel
syndrome. 15 Ultimately, however, she was able to present little
evidence to support this theory. But she did present considerable
evidence indicating that the problems she experienced stemmed from
work-related episodes of tendinitis.
At the hearing on her claims, Tolbert described suffering
from work-related problems with her hands on February 22, 1993,
June 1, 1994, and June 14, 1994. She presented extensive expert
testimony suggesting that the problems she experienced were work
related. Dr. Lipke, Tolbert's treating physician and primary
witness, testified about carpal tunnel syndrome and tendinitis,
describing the differences between the two conditions. According
to Dr. Lipke, carpal tunnel is the narrow passageway in the wrist
between the wrist bones and the transverse carpal ligament. The
flexor tendons and the median nerve must pass through this tunnel
to reach the fingers. Although the causes of carpal tunnel
syndrome vary, one cause is repetitious trauma. Repetitious
motion, coupled with the normal aging process, can cause pain in,
and swelling of, the tendons -- resulting in tendinitis.
Tendinitis can, by putting pressure on the median nerve, in turn,
lead to carpal tunnel syndrome. Tendinitis is a temporary
condition and generally will resolve without causing carpal tunnel
syndrome. But if the pressure is persistent enough, nerve
dysfunction, pain, numbness, and tingling in the fingers --
collectively called carpal tunnel syndrome -- will result. Scar
tissue may eventually form on the nerve, which can, when combined
with external pressure, continue to irritate the nerve even after
the tendinitis resolves. Once the carpal tunnel syndrome becomes
sufficiently severe, surgery is necessary to release it. Carpal
tunnel release surgery consists of cutting the ligament that forms
part of the carpal tunnel, thereby releasing the pressure on the
median nerve.
Dr. Lipke also addressed the issue of Tolbert's
diagnosis. He commented that, in Tolbert's case, nerve conduction
studies revealed no aggravation of her carpal tunnel syndrome. In
Dr. Lipke's view, Tolbert's problems were more likely attributable
to tendinitis. Specifically, Dr. Lipke testified that repetitive
motions like keyboarding can cause and aggravate tendinitis, that
Tolbert's symptoms were consistent with tendinitis, and that
tendinitis could be objectively confirmed if volumetric tests
showed abnormal swelling.
Volumetric testing of Tolbert's hands did in fact reveal
abnormal swelling. Dr. Ferris conducted two volumetric tests on
Tolbert. The first simulated Tolbert's job as she had described
it, but Dr. Ferris later deemed this test unreliable because he
learned that Tolbert had exaggerated the amount of keyboarding she
usually performed. Dr. Ferris personally designed the second test
after speaking with Alascom about the kinds of work Tolbert
actually did and after observing Tolbert's work being performed by
other Alascom workers. Dr. Ferris testified that this second test
accurately simulated Tolbert's job conditions. In both tests,
Tolbert's hands swelled abnormally.
Dr. Ferris, like Dr. Lipke, found the results of the
volumetric testing significant because the tests had been designed
to mimic Tolbert's actual work conditions and they produced
abnormal swelling. In Dr. Ferris's view, the objective signs of
swelling substantiated Tolbert's subjective complaints of hand
pain. Moreover, swelling to the degree he observed would cause
pain and "decrease the amount of function that [Tolbert] would feel
comfortable with carrying out." He indicated that he believed that
Tolbert's hands would continue to swell as long as she persisted in
the sorts of activities required by her job.
Although Dr. Ferris said that Tolbert's hand swelling was
not necessarily tendinitis and might be a sort of passive edema
related to carpal tunnel syndrome, he recognized that his opinion
on this issue was speculative, and he deferred to Dr. Lipke's
diagnosis of tendinitis, because, in Dr. Ferris's view, Dr. Lipke
had more expertise in diagnosing the condition.
Two other experts presented evidence at Tolbert's
hearing: Drs. Sack and Fu. Their testimony aimed primarily at
negating the possibility that Tolbert's problems had been caused by
an aggravation of her carpal tunnel syndrome. Both agreed that her
work had not caused any substantial permanent aggravation in her
carpal tunnel syndrome.
Dr. Fu testified that Tolbert was left with mild residual
nerve entrapment after her carpal tunnel release surgeries and, as
a result, her "symptoms"might increase with activity. But he did
not explain what symptoms he expected her to have. He acknowledged
the presence of some form of "temporary aggravation and
reaggravation of pain and discomfort"when Tolbert engages in
"repetitive hand activities." But beyond disputing Tolbert's claim
of aggravated carpal tunnel syndrome and mentioning the possibility
of some residual "symptoms"that might occur in the absence of
aggravation, Dr. Fu did not specify what Tolbert's problem might or
might not be. While he did testify that she still objectively
showed some "decrease of sensations involving both hands"and
increased sensitivity along her wrist, he drew no inferences from
these symptoms. As for the swelling in Tolbert's wrists, he failed
to account for it at all.
Like Dr. Fu, Dr. Sack also unequivocally testified that
he did not believe that Tolbert's carpal tunnel syndrome had been
aggravated. But he, too, was silent with respect to tendinitis and
did not account for Tolbert's swelling. He testified that
Tolbert's carpal tunnel syndrome, even after surgery, would cause
a "bit of symptomatology." But he did not describe what symptoms
he had in mind; nor did he deny that Tolbert might also be
suffering from tendinitis.
2. Tolbert established the preliminary link necessary
to raise the presumption that her employment
substantially aggravated her tendinitis.
The Board found that there was "no medical testimony
indicating [that Tolbert] suffered a work-related injury on
February 22, 1993, June 1, 1994 or June 14, 1994." Accordingly, it
concluded that Tolbert failed to establish the preliminary link
necessary to trigger the presumption of compensability. Tolbert
challenges this finding.
Alaska Statute 23.30.120 presumes that workers'
compensation claims are compensable. But this presumption does not
apply automatically; we have held that the worker must show a
preliminary link between the injury and the job. 16 To establish
such link, "the claimant need not present substantial evidence that
his or her employment was a substantial cause of . . .
disability."17 Rather, an offer of "some evidence"that the claim
arose out of the worker's employment is sufficient. 18 For purposes
of determining whether the claimant has established the preliminary
link, only evidence that tends to establish the link is considered
-- competing evidence is disregarded. 19 Likewise, credibility plays
no part in the process: "In making its preliminary link
determination, the board need not concern itself with the
witnesses' credibility."20
At her hearing, Tolbert reported work-related problems
with her hands occurring on February 22, 1993; June 1, 1994; and
June 14, 1994. She presented a great deal of expert testimony
suggesting that the problems she experienced were work related.
Dr. Lipke testified that keyboarding can cause and aggravate
tendinitis, that Tolbert's symptoms were consistent with
tendinitis, and that tendinitis could be objectively confirmed if
volumetric tests showed abnormal swelling -- which, in Tolbert's
case, they did.
Considering the overwhelming medical evidence supporting
a work-related injury, and given the minimal
showing required to establish the preliminary link
and the irrelevance of credibility at this phase of
the inquiry, we hold that there was sufficient
evidence to establish the preliminary link and give
rise to the presumption of compensability. Thus,
the Board erred in finding that Tolbert did not
produce "some evidence"linking her injuries to her
job.
3. Alascom did not present substantial evidence to
overcome the presumption that Tolbert's tendinitis
was work related.
Once the preliminary link has been established, "it is
the employer's burden to overcome the presumption [of
compensability] by coming forward with substantial evidence that
the injury was not work related."21 Substantial evidence is
evidence that a reasonable mind might accept as adequate to support
a conclusion; where the question is whether the presumption of
compensability has been overcome, the evidence should be examined
by itself and not in the light of other conflicting evidence. 22 We
have explained this standard as follows:
To overcome the AS 23.30.120(a) presumption of
compensability, an employer must present
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."[23]
If the employer successfully rebuts the presumption of
compensability, the presumption drops out, and the employee must
prove all of the elements of the case by a preponderance of the
evidence. 24
Here, the Board found that, even if Tolbert had
established the preliminary link, Alascom would have overcome "the
presumption of compensability with the testimony of Dr. Sack and
Dr. Fu." But, again, the thrust of both doctors' testimony was
that Tolbert had experienced no permanent aggravation of her carpal
tunnel syndrome -- they scarcely referred to the issue of
tendinitis. And while the doctors mentioned the possibility that
Tolbert's prior carpal tunnel syndrome might continue to manifest
itself in a "bit of symptomatology,"neither specified what
symptoms might occur or characterized such symptomatology as a
likely cause of Tolbert's recent problems. In short, although Dr.
Sack and Dr. Fu did point to a possible alternative cause for
Tolbert's pain, they did not describe this alternative as its
probable cause or otherwise attempt to rule out Dr. Lipke's
diagnosis of work-related tendinitis.
We have previously recognized that, for purposes of
overcoming the presumption of compensability, "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."25 Because Dr. Sack's and Dr. Fu's
testimony does nothing more than point to other possible causes, it
fails to rebut the presumption of compensability. 26
4. The Board erred in alternatively concluding that
Tolbert had not proved that her claims were work
related because she failed to show "but for"
causation.
The Board alternatively concluded that Tolbert failed to
prove her claims by a preponderance of the evidence because she
failed to prove that her wrist injuries would not have occurred
"but for"the work. Though the Board accepted Dr. Lipke's
testimony that the swelling in Tolbert's hands indicated a problem
with tendinitis and that Tolbert's work at Alascom aggravated this
condition, it nevertheless found that her activities at home also
might have aggravated the condition. Therefore, the Board
reasoned, Tolbert had failed to establish that, "but for"her work,
she would not have been disabled.
But this reasoning conflicts with our prior holdings on
substantial-factor causation. We have said that, "when two or more
forces operate to bring about an injury and each of them, operating
alone, would be sufficient to cause the harm, the 'but for' test is
inapplicable because it would tend to absolve all forces from
liability."27 In such cases, it is necessary to ask whether the
work-related injury was a substantial factor in causing the
disability: "If one or more possible causes of a disability are
[work related], benefits will be awarded where the record
establishes that the [work-related] injury is a substantial factor
in the employee's disability regardless of whether a [non-work-
related] injury could independently have caused disability."28
The "but for"standard applied by the Board required
Tolbert to prove that her work-related injury was the sole cause of
-- and not merely a substantial factor in causing -- her
disability. Because the standard applied by the Board conflicts
with the substantial-factor test, which we have held applicable in
cases like Tolbert's, we reject the Board's alternative ground for
concluding that Tolbert failed to prove her claims.
5. The Board erred in alternatively concluding that
Tolbert's claims are barred by res judicata.
As yet another independent ground for denying Tolbert
relief, the Board concluded that her 1993 and 1994 claims were not
compensable because they were legally precluded. Finding that
Tolbert's tendinitis was as longstanding as the underlying carpal
tunnel syndrome, the Board reasoned that any claims relating to her
tendinitis were barred by res judicata following our 1992 decision
affirming the denial of Tolbert's original claims for carpal tunnel
syndrome. But this holding conflicts with the Board's finding that
tendinitis is a temporary (albeit recurring) condition. Under
these circumstances, claim preclusion does not apply.
III. CONCLUSION
We AFFIRM the superior court's judgment as to Tolbert's
June 1992 injury. But as to her 1993 and 1994 claims, given that
Tolbert raised the presumption of compensability and that Alascom
failed to rebut it, we must REVERSE the Board's decision and REMAND
this case for a determination of the extent and compensability of
Tolbert's injuries. 29
*Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Administrative Rule 23(a).
1 See Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co.,
746 P.2d 896, 903 (Alaska 1987).
2 Municipality of Anchorage, Police & Fire Retirement Bd.
v. Coffey, 893 P.2d 722, 726 (Alaska 1995).
3 See Tesoro, 746 P.2d at 903.
4 Id.
5 Fireman's Fund Am. Ins. Cos. v. Gomes, 544 P.2d 1013,
1015 & n.6 (Alaska 1976).
6 AS 23.30.120; see Olson v. AIC/Martin J.V., 818 P.2d 669,
672 (Alaska 1991).
7 See AS 23.30.120.
8 See Fairbanks N. Star Borough v. Rogers & Babler, 747
P.2d 528, 532 (Alaska 1987).
9 See AS 23.30.120.
10 See Brunke v. Rogers & Babler, 714 P.2d 795, 801 (Alaska
1986) (using this "access to information"argument to support
allocating to the employee the burden of showing evidence of loss
of earnings).
11 See Veco, Inc. v. Wolfer, 693 P.2d 865, 869-70 (Alaska
1985) (where presumption rebutted, claimant must prove each element
by a preponderance of the evidence); see also Brunke, 714 P.2d at
801 (placing burden upon the employee to prove loss of earning
capacity); 8 Arthur Larson, Larson's Worker's Compensation Law
§ 80.33(a), 15-910 to 929 (1998) (noting that the employee usually
has the burden of proving the extent of his injury or disability).
12 Cf. Zimin v. Zimin, 837 P.2d 118, 122 (Alaska 1992) ("It
is the duty of the parties, not the court, to ensure that all
necessary evidence is presented at trial."); Hartland v. Hartland,
777 P.2d 636, 640 (Alaska 1989) (holding that a party who fails to
provide sufficient evidence at trial cannot object to the resulting
determination on the basis of inadequate evidence).
13 (3d ed.) (1988).
14 See AS 23.30.190(b).
15 See Thornton v. Alaska Workmen's Compensation Bd., 411
P.2d 209, 210 (Alaska 1966) (work-related aggravation of a pre-
existing condition is compensable where the aggravation is a
substantial factor in a disability).
16 See Grainger v. Alaska Workers' Compensation Bd., 805
P.2d 976, 977 (Alaska 1991); Burgess Constr. Co. v. Smallwood, 623
P.2d 312, 316 (Alaska 1981).
17 Fox v. Alascom, Inc., 718 P.2d 977, 984 (Alaska 1986).
18 See Gillispie v. B & B Foodland, 881 P.2d 1106, 1109
(Alaska 1994).
19 Cf. Veco, Inc., v. Wolfer, 693 P.2d 865, 869-70 (Alaska
1985) (courts must not weigh the employer's rebuttal evidence
against conflicting evidence).
20 Resler v. Universal Servs., Inc., 778 P.2d 1146, 1148-49
(Alaska 1989).
21 Louisiana Pacific Corp. v. Koons, 816 P.2d 1379, 1381
(Alaska 1991) (quoting Burgess Constr. Co. v. Smallwood, 698 P.2d
1206-11 (Alaska 1985) (citations omitted)).
22 See Wolfer, 693 P.2d at 869.
23 Williams v. State, Dep't of Revenue, 938 P.2d 1065, 1072
(Alaska 1997) (quoting Gillispie v. B & B Foodland, 881 P.2d 1106,
1109 (Alaska 1994)) (emphases added).
24 See Koons, 816 P.2d at 1381.
25 Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189
(Alaska 1993).
26 See Williams, 938 P.2d at 1075.
27 Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d
528, 532 (Alaska 1987).
28 State, Pub. Employees Retirement Bd. v. Cacioppo, 813
P.2d 679, 683 (Alaska 1991) (applying workers' compensation law
analogously to PERS disability claim) (emphasis added). See
generally State v. Abbott, 498 P.2d 712, 727 (Alaska 1972) (quoting
William L. Prosser, Handbook of the Law of Torts § 41, at 239-40
(4th ed. 1971) ("If two causes concur to bring about one event, and
either one of them, operating alone, would have been sufficient to
cause the identical result then [liability should be imposed].")).
29 Tolbert further argues that the Board erred in failing to
award attorney's fees. We need not decide the issue. Because we
have now determined that Tolbert is entitled to compensation, the
Board, on remand, will be required to reconsider the issue of
attorney's fees. Tolbert separately argues that the Board erred in
failing to inform her of her right to a second independent medical
evaluation. Our conclusion that Tolbert is entitled to
compensation for her claims also makes it unnecessary for us to
address this argument.
In the Supreme Court of the State of Alaska
Daretha Tolbert, )
) Supreme Court No. S-08038
Appellant, )
v. ) Order
)
Alascom, Inc., )
)
Appellee. ) Date of Order: 3/19/99
)
Trial Court Case # 3AN-95-06990CI
Before: Matthews, Chief Justice, Compton, Senior Justice, Pro Tem*, and
Eastaugh, Fabe,
and Bryner, Justices. [Carpeneti, Justice, not participating.]
IT IS ORDERED:
5. The petition for rehearing filed by the Appellee is
DENIED.
6. Opinion No. 5073, issued on January 29, 1999, is
WITHDRAWN.
7. Opinion No. 5095 is issued on this date in its place.
The changes made to this reissued opinion are located
on page 14, after footnote number 21. Footnote number
22 has also been corrected.
Entered by direction of the Court.
Clerk of the Appellate Courts
Deputy Clerk
Distribution:
Supreme Court Justices
Judge Joan Woodward
Publishers
Charles W. Coe
805 West Third Avenue #100
Anchorage AK 99501
Shelby L. Nuenke-Davison
3351 Arctic Boulevard
Anchorage AK 99503
__________________________
-19- 5095
Order1.wpt
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