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Twiggs v. Municipality of Anchorage6/19/2002
1047. Although we answered both questions in the affirmative, we did not purport to determine whether Twiggs has actually lost an FAA promotion due to his injury, thus entitling him to PPD benefits. It is for this purpose - to determine whether Twiggs lost a promotion entitling him to PPD benefits - that we remand the case to the Board. If the Board finds that Twiggs is entitled to PPD benefits on the basis of a lost promotion, then it shall calculate the benefits in accordance with former AS 23.30.220(a)(4).
Twiggs gives two arguments why the court should use the section .120 presumption instead of the Hewing presumption. He argues (1) that the August order on the petition for rehearing supercedes the previous June order, and (2) that the section .120 presumption applies to the lost promotion issue and the Hewing presumption only applies to determine whether Twiggs lost earning capacity as a result of the lost promotion. He asks this court to hold that he properly raised the section .120 presumption, but that the MOA never rebutted that presumption. He asks that the court follow the guidelines set forth in DeYonge, supra.
Twiggs' arguments fail for a number of reasons. First, there is no indication that the supreme court intended the August 26, 1999 (the second order) to somehow supercede and eliminate its earlier June 11, 1999 order on the petition for review. The June order clarifies which standard the supreme court intended the board to use. It clearly stated "the board shall decide whether Twiggs lost a promotion as a result of his injury , in accordance with the discussion contained in footnote 7." The August 26 order did not contradict this statement, nor did it state that it was reversing its earlier holding. The August order clarified its earlier decision and let the board know that it had to answer two questions: (1) whether Twiggs lost a promotion entitling him to PPD benefits, and (2) if the board finds that he did lose PPD benefits entitling him to damages, the board was to calculate those damages according to former AS 23.30.220(a)(4). The August order is consistent with the court's decision in Twiggs, plus it is consistent with its order in June 1999. The August order did not supercede or reverse the June order.
The next reason why Twiggs' arguments fail is the language of the June 11, 1999 order clearly states that "the board shall decide whether Twiggs lost a promotion as a result of his injury , in accordance with the discussion contained in footnote 7." Footnote 7 is the part of the 1997 Twiggs opinion that sets out the Hewing presumption. Twiggs, supra. Twiggs argues that the section .120 presumption applies to the lost promotion issue and the Hewing presumption only applies to determine whether Twiggs lost earning capacity as a result of the lost promotion. He is wrong. The June 11, 1999 order clearly states that the Hewing presumption is to be used to determine "whether Twiggs lost a promotion as a result of his injury...." Since the order unequivocally holds that the Hewing presumption is to be used to determine whether Twiggs lost a promotion as a result of his injury, it would be impossible for the board to apply the section .120 presumption to the same issue.
A third reason Twiggs' argument must fail is the section .120 presumption and the Hewing presumption accomplish the same purpose. Either presumption must be met before the employee may prove his claim. The first step of the section .120 presumption is the employee must establish a link between his employment and the injury. DeYonge, 1 P.3d at 94. If the employee meets that burden, then "it is the employer's burden to overcome the presumption of compensability by coming forward with substantial
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