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Twiggs v. Municipality of Anchorage6/19/2002
evidence test' for questions of fact; the `reasonable basis test' for questions of law involving agency expertise; the `substitution of judgment test' for questions of law where no expertise is involved; and the `reasonable and not arbitrary' test for review of administrative regulations." Id.
The court must accept an agency's factual determinations unless there is no substantial evidence to support them. Commercial Fisheries Entry Comm'n v. Baxter, 806 P.2d 1373, 1374 (Alaska 1991). A court may apply its independent judgment in reviewing an agency's decision only if the decision does not involve the agency's expertise. Alaska Public Employees Ass'n v. State, 831 P.2d 1245, 1247 (Alaska 1992). The substitution of judgment standard is appropriate for reviewing questions of law where the knowledge and experience of the agency is of little guidance to the court or where the case concerns statutory interpretation. State, Dep't of Health & Soc. Servs. v. Hope Cottages, Inc., 863 P.2d 246, 249 n.3 (Alaska 1993). When a court reviews a statute using its independent judgment it has a duty to adopt the rule of law that is most persuasive in light of precedent, reason, and policy. Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Twiggs argues that there are actually three standards of review. The first issue is whether the board should have used the AS 23.30.120 presumption or the Hewing [v. Peter Kiewit & Sons, 586 P.2d 182 (Alaska 1978)] presumption. Twiggs argues that the board applied the wrong presumption, and that its decision should be reviewed de novo. The MOA argues that the supreme court already decided which presumption is applicable in Twiggs v. Municipality of Anchorage, 938 P.2d 1046 (Alaska 1997), and no standard of review is necessary. The supreme court held in Municipality of Anchorage v. Carter, 818 P.2d 661, 664 (Alaska 1991), that the question of whether the presumption of compensability of AS 23.30.120(a) applies to shift the burden of production to employers is a question of law, reviewed de novo. See also Miller v. ITT Arctic Servs. Corp., 577 P.2d 1044, 1046 (Alaska 1978). De novo review is appropriate for this issue.
Twiggs next asserts that the court should apply the "independent judgment" test to determine whether the board abused its discretion in failing to apply the AS 23.30.120 presumption (section .120 presumption). His abuse of discretion argument appears superfluous. Aside from his assertion in his "statement of issues," Twiggs never actively argues abuse of discretion. Since this issue is so closely related to the previous issue, and because Twiggs never argued abuse of discretion, it is of no value here.
Both parties agree that factual determinations should be viewed under the substantial evidence standard. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. DeYonge v. Nana/Marriott, 1 P.3d 90, 94 (Alaska 2000).
DISCUSSION
I. The Board Properly Used the Hewing Presumption Against Compensability
The first issue is which presumption was appropriate for the board to use in its determination of whether Twiggs was entitled to PPD benefits. Two presumptions could be used in this case. The first presumption is set out in AS 23.30.120. The appellant, Twiggs, argues that the AS 23.30.120 presumption controls this case. That presumption is a three-step process.
First, the employee must establish the preliminary link between her employment and her alleged injury. Once the employee establishes that link, it is the employer's burden to overcome the presumption of compensability by coming forward with substantial evidence tha
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