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Twiggs v. Municipality of Anchorage6/19/2002
evidence that the injury was not work related." Id. The Hewing presumption, on the other hand, is a presumption against compensability, where the employee must present evidence which, viewed in isolation, could lead a reasonable person to conclude his post-injury income did not reflect his earning capacity. Twiggs, 938 P.2d at 1050 n.7. The section .120 presumption for compensability places the burden on the employer to demonstrate that the injury was not work related (once the employee establishes some link between employment and the injury). The Hewing principle against compensability places the burden on the employee to demonstrate that his post-injury income did not reflect his earning capacity. If the party is able to overcome the presumption in either situation the employee must prove his claim by a preponderance of the evidence for the final step. See id. and DeYonge, 1 P.3d at 94. Twiggs' argument that the section .120 presumption must be satisfied before the Hewing presumption comes into play is flawed because in both cases the presumption must be satisfied before the employee can attempt to prove his claim by a preponderance of the evidence. If both presumptions were necessary, why would the employee have to prove his claim by a preponderance of the evidence a second time?
Other reasons why the section .120 presumption is inapplicable are listed below. First, the supreme court never mentioned the section .120 presumption in Twiggs, or either of the orders it handed down in 1999. If the presumption were so central to the case, the court would have addressed it at some point in time. Also, in footnote 7, the court clearly states "a volunteer such as Twiggs, who experienced no decline in overall income, would first have to overcome the Hewing presumption...." Twiggs, 938 P.2d at 1050 n.7 (emphasis added). The court clearly states that the first thing that Twiggs must do is overcome the Hewing presumption. Finally, DeYonge, is distinguishable from this case. In DeYonge, the issue was whether a worker who suffers increased symptoms due to physical requirements of her job is entitled to workers compensation when she had a pre-existing arthritic condition. The woman did experience a decline in income, unlike Twiggs.
In summary, there is no evidence or sound argument to support Twiggs' contention that the August 26, 1999 supreme court order superceded or reversed any of its prior holdings. The June and August supreme court orders are consistent with the Twiggs opinion. Furthermore, his argument that the board should apply the section .120 presumption to the lost promotion issue and that the Hewing presumption applies only to determine whether Twiggs lost earning capacity as a result of the lost promotion is flawed. In both situations, the presumption must be overcome before the employee can prove his claim.
The next issue is whether Twiggs was able to rebut the Hewing presumption, which would place the burden on Twiggs to prove his case by a preponderance of the evidence. This issue was not raised on appeal, but is necessary for a complete analysis of Twiggs' case.
II. Twiggs was Able to Rebut the Hewing Presumption
Twiggs must present evidence which, viewed in isolation, could lead a reasonable person to conclude Twiggs' post-injury income did not reflect his earning capacity in order to rebut the initial Hewing presumption. Twiggs at 1050 n.7. The board found that Twiggs met the initial Hewing presumption. Twiggs presented a letter and deposition testimony from his supervisor, Mr. Derry. Derry testified in his depositions that he did not recommend Twiggs for the promotion because of his injury. He believed that the injury caused Twiggs' short temper an
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