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Twiggs v. Municipality of Anchorage6/19/2002
t the injury was not work related. If the employer meets this burden then the presumption disappears and the employee must prove her claim by a preponderance of the evidence. DeYonge, 1 P.3d at 94.
The second presumption is known as the Hewing presumption, and it is the one that is advocated by the MOA and was used by the board in making its most recent decision. The Hewing presumption holds as follows:
volunteer . . . who experienced no decline in overall income [as a result of an injury ], would first have to overcome the Hewing presumption against compensability by presenting evidence which, viewed in isolation, could lead a reasonable person to conclude his post-injury income did not reflect his earning capacity. If the presumption were displaced, the employee would then have to prove all elements of his claim by a preponderance of the evidence. Twiggs v. Municipality of Anchorage, 938 P.2d 1046, 1050 n.7 (Alaska 1997) (citations omitted).
The outcome of this appeal rests largely on which presumption is used. If the section .120 presumption is used, then the burden will be on the MOA to show that the injury was not work related. If the Hewing presumption is used, then the burden is on Twiggs to present evidence that his post-injury income did not reflect his earning capacity. The supreme court addressed this issue in Twiggs and it is clear that the Hewing presumption is the only presumption that should be applied in this case.
In Twiggs the supreme court heard this case on appeal from the first board (and superior court) decision against Twiggs. The supreme court held that when an employee's earnings increase after an injury , the employee may be entitled to PPD benefits. The court also delineated how to calculate the damages, if necessary. It remanded the case to the board.
The board misinterpreted the supreme court's decision. It mistakenly believed that the supreme court found that Twiggs was entitled to damages and that the board only had to calculate the damages. The board awarded Twiggs damages based on its faulty interpretation of the court's opinion in Twiggs. The superior court reversed the board's finding of damages because it determined that the supreme court did not make a factual finding of damages. It remanded the case back to the board to determine whether Twiggs' claim for PPD benefits had merit. Twiggs filed a petition for review. He argued that the superior court decision was incorrect. The supreme court gave the following instruction on June 11, 1999:
The court having considered the Petition for Review, hereby grants the petition, affirms the superior court's decision, and clarifies the instructions on remand from this court in Twiggs v. Municipality of Anchorage, 938 P.2d 1046 (Alaska 1997) as follows:
On remand, the Board shall decide whether Twiggs lost a promotion as a result of his injury , in accordance with the discussion contained in footnote 7 of the opinion. 938 P.2d at 1050.
The Municipality of Anchorage filed a motion for rehearing on the basis that the board had already decided adverse to Twiggs that he lost the promotion because of personality inadequacies, not because of his injury . The court held in its order on the petition for rehearing on August 26, 1999:
In Twiggs v. Municipality of Anchorage, 938 P.2d 1046 (Alaska 1997), we addressed two questions: "(1) whether an injured employee whose post-injury income is greater than his income at the time of injury is entitled to PPD benefits as a result of a lost promotion; and (2) whether Twiggs' compensation benefits calculation is capped at the minimum gross weekly wage of a full-time Anchorage policeman." Id. at
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