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Twiggs v. Municipality of Anchorage6/19/2002
d abrupt nature, and that it prevented Twiggs from sitting for long periods of time (a prerequisite of the job). Furthermore, in a January 3, 1992, letter to Twiggs, Derry wrote:
As I have discussed with you on previous occasions, I can not recommend you for promotional positions because of the physical limitations that have resulted from the injury you sustained to your back while working for the Anchorage Police department. While I realize that you will stand no chance of obtaining a promotion with out my recommendation, I simply can not say that you can accomplish required tasks when you and I both know that you can not physically do so....
Although your experience level, competence, and proficiency would more than have qualified you, I did not recommend you for the GM 15 position as special agent in charge of the international field office in Brussels last September because of your physical impediments. I did not consider you for the GM 15 position of Assistant Division Manager for this division in 1990 for the same reason....
The board found that this letter and Derry's depositions, when viewed in isolation, were sufficient to satisfy the initial Hewing presumption. Whether there is sufficient evidence to meet the initial Hewing presumption is a factual conclusion. Factual conclusions are reviewed using the substantial evidence standard. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. DeYonge, 1 P.3d at 94.
There is sufficient, relevant, evidence (when viewed in isolation) to support the board's finding that Twiggs' post-injury income did not reflect his earning capacity. Derry, in his letter, clearly states that he did not recommend Twiggs for the GM-15 position because of his physical impediments. At the time Twiggs was being considered for his promotion, he was at the GM-14 level. His post-injury income did not reflect his earning capacity because, according to Derry, Twiggs would have been promoted to the higher paying GM-15 position, but for his injury .
The final step in the Hewing presumption is that the employee must prove all the elements of his claim by a preponderance of the evidence. The issue before this court is whether the record contains substantial evidence to support the board's finding that Twiggs was not able to prove his claim.
III. Substantial Evidence Exists to Support the Board's Factual Findings
The board's finding that Twiggs did not prove his claim by a preponderance of the evidence is reviewed using the substantial evidence standard. An award for compensation must be supported by a finding that the claimant suffered a decrease in earning capacity due to a work- connected injury or illness. Twiggs, 938 P.2d at 1048 (quoting Vetter v. Alaska Workmen's Compensation Board, 524 P.2d 264, 266 (Alaska 1974)). Therefore, Twiggs must prove by a preponderance of the evidence that he suffered a decrease in his earning capacity because of his injury.
The board identified several reasons in its finding that Twiggs did not meet his burden. First, the board found that Twiggs raised his "back pain excuse" for his demeanor after Derry confronted him in 1989 regarding complaints he received that Twiggs was curt with customers and fellow employees. Twiggs v. Municipality of Anchorage, AWCB Decision No. 00-0134 (July 7, 2000). The board also found that he did not seek medical attention for his back pain until August of 1990, nearly three years after the accident. Id. Finally, the board found that his surly demeanor and undiplomatic dealings with others pre-existed his Municipal injury . Id.
Each of the board's findings
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