Several questions concerning judicial review of Alaska Workmen's Compensation Board orders are presented on this appeal.
Appellee William Rodgers, while employed by appellant Interior Paint Company, was injured in a work-connected accident in May of 1967, when he fell from a scaffold. In September of 1967 the matter was considered by the Alaska Workmen's Compensation Board, which ordered temporary total disability payments be made to appellant. Rodgers received periodic compensation payments pursuant to the provisions of AS 23.30.185 until he had received the then allowable maximum of $17,000 under AS 23.30.155(l).
Upon application of Rodgers, there was a second Board hearing in January of 1971, at which a finding of permanent total disability was sought. In its February 1971 decision and order, the Board denied
In July 1971 Rodgers moved, under AS 23.30.130(a), for reconsideration of this second decision, alleging mistake of fact. At the hearing on this motion, it was contended that he was permanently and totally disabled due to conversion hysteria caused by his physical condition. Rodgers was not present at the hearing before the Board. Testimony by his wife, Violet, describing his condition, and a deposition of a psychiatrist, Dr. N.J. Bender, stating that Rodgers was totally disabled and that his condition "could be permanent" were presented. In his deposition, Dr. Bender stated that he thought Rodgers' accident at work was the precipitating cause of the conversion hysteria. He was not asked, however, about the possible effect of the intervening non-work-connected injuries which Rodgers had received since the accident at work. The Board denied the petition for modification in a December 1971 decision and order, stating that it viewed the evidence of Dr. Bender and Violet Rodgers as cumulative and not sufficient to show mistake of fact in its earlier denial of further compensation.
Rodgers then sought review by the superior court, requesting that the Board's denial of modification be set aside. He alleged that the Board had misinterpreted the numerous medical reports in its file. The court read all of the reports, most of which were considered by the Board for its September 1967 and February 1971 decisions. In December of 1972 the court ordered the Board to render a finding of permanent total disability in favor of claimant. In January of 1973 this order was amended as too broad, the December 1971 decision and order of the Board was set aside, and the case was remanded to the Board for further action.
It is from this January 1973 amended order that Interior Paint appeals, presenting three basic contentions: (1) the superior court erred in reviewing the entire file rather than reviewing only that evidence relevant to the modification hearing; (2) the superior court erred by applying the wrong standard of judicial review; it should not have independently evaluated all of the evidence; (3) the superior court erred in setting aside the Board's December 1971 decision and order, as it met all the requirements of the substantial evidence standard.
The superior court determined that the Board's December 1971 denial of modification was erroneous because the Board's earlier, February 1971 decision was erroneous. It held that the February 1971 decision was incorrect because it was based on a mistake of fact. The court also determined that claimant Rodgers was permanently and totally disabled.
The court's first conclusion, that the Board had been mistaken in its determination of fact, clearly reveals that the court considered everything in the Board file. The second determination, that claimant was permanently and totally disabled, is ambiguous as to just what material was considered but it refers to "numerous reports"; taken together with the first determination and the court's statements at hearing, we must conclude that the court probably also based this second conclusion on the entire Board file. The great majority of the reports in this file were before the Board for its previous decisions on the matter. The only new evidence introduced for the Board's consideration leading to its December 1971 decision and order denying modification was the deposition of Dr. Bender and the testimony of Violet Rodgers.
AS 23.30.125(a) provides that a Board order becomes final on the 31st day following filing unless review proceedings are instituted.
However, AS 23.30.130(a) raises an apparent complication:
A modification proceeding originates in the initial claim for compensation. It is necessary to determine the limits of the Board's exploration, at a modification proceeding, of the prior evidence adduced on the initial claim in view of the plain statutory language that an order becomes final after thirty days. The language of AS 23.30.130(a) is broad; the Board may review because of change in condition or mistake in determination of fact. The latter, in particular, suggests that the Board may feel a need to re-examine some of its previous fact findings.
In Fischback & Moore of Alaska, Inc. v. Lynn, 453 P.2d 478, 484 (Alaska 1969) we upheld the Board's determination of mistake
The United States Supreme Court, interpreting the analogous federal statute,
The Court went on to state that such a broad interpretation of the modification-of-awards statute does not conflict with the thirty-day finality provision, since the review authorized under that provision is limited to the legal validity of an award and does not extend to a redetermination of fact. It is apparent, then, that the Board may go back through evidence adduced at the prior hearing. The reviewing court, too, may then review that evidence using the applicable standard.
In the instant case the Board chose not to sift through all previous evidence. Its December 1971 decision and order stated
Although the Board did not reconsider all of the evidence, the reviewing court did. Appellant contends that the Board reviewed the appropriate record while the court did not. We turn first to the question of what constitutes the proper record for the Board in a modification proceeding. We find that an examination of all previous evidence is not mandatory whenever there is an allegation of mistake in determination of fact under AS 23.30.130(a). A requirement of automatic full review would be particularly susceptible to abuse:
Although the Board "may" review a compensation case, and this review can consist merely of further reflection on the evidence initially submitted, it is an altogether different matter to hold that the Board must go over all prior evidence every time an action is instituted under AS 23.30.130(a). Such a requirement would rob the Board of the discretion so emphatically upheld in O'Keeffe v. Aerojet-General Shipyards, Inc., supra.
In Flamm v. Willard, 125 F.Supp. 932 (E.D.N.Y. 1954), a denial of review was affirmed based on the fact that the Deputy Commissioner had acted after due consideration of reports submitted with the petition to reopen. Such is the situation in the instant case. There had been two previous hearings at which extensive medical evidence was presented. These hearings resulted in a determination that Rodgers' condition was caused by non-work-connected accidents. At a third hearing, the Board heard further evidence and arguments, then determined that the new material did not touch upon the crucial question of the separate and intervening causes and so ended the matter. The Board considered a limited record rather than once again reviewing the evidence considered twice before. The Board is entrusted with discretionary authority and has a valid interest in finality of decision, as do the parties. We cannot say that the Board must always review all prior evidence whenever mistake in determination of fact is alleged. To so mandate would cause the grant of discretion to become mere illusion. The Board must only give due consideration to any argument and evidence presented with a petition for modification. That is what the Board did here. The superior court, however, went beyond the evidence which the Board considered and based its decision on other parts of the record. We agree with appellants that the extensive review by the court was in error.
In their second specification of error, appellants contend that the superior court erred by independently evaluating the evidence rather than restricting itself to a narrower form of review. We agree. It is well settled in Alaska that an initial order of the Board should be reviewed in accordance with the principle of substantial evidence. This standard restricts the court
It is not clear what standard of judicial review was applied by the superior court in this case. Although only the Board's December 1971 decision was properly before it, the court found that the December decision was "erroneous" because it deemed the Board's February 1971 decision to be "clearly erroneous as based on a mistake of fact in finding that Mr. Rodgers' condition was caused by intervening accidents." This characterization of the Board's decisions leads us to believe that the court may have done exactly what the substantial evidence test forbids: it may have chosen between competing inferences, weighed the evidence, or re-evaluated all the evidence and come to a conclusion different from that of the Board. Later, the court states, "There is no substantial evidence in the record to support the Board's finding. The numerous reports in the record show such a disability." While the first sentence implies that the court's review was guided by the substantial evidence standard, the second sentence of this statement indicates that the court may have misapplied that standard. It indicates that the court may have concentrated on competing evidence rather than determining whether the evidence relied upon by the Board to support its decision was substantial. Since it is probable that the superior court followed a standard of review broader than the substantial evidence standard, we conclude that the court erred.
We reverse the superior court's judgment and remand with directions to enter judgment in conformity with this opinion.
Reversed and remanded.
The "order and amended judgment" filed January 25, 1973, merely states that the court's December decision and order were too broad. No findings or conclusions are included in the amended order although it does not indicate that the court abandoned the rationale underlying the first order.
And see Alaska Mines & Minerals, Inc. v. Alaska Industrial Board, 354 P.2d 376 (Alaska 1960), where we held under similar sections of the statute prior to AS 23.30.125, that the right to institute a review proceeding expired at the end of the thirty-day period.
In an earlier opinion in the same case, Fischback & Moore of Alaska, Inc. v. Lynn, 430 P.2d 909, 911-912 (Alaska 1967), we adopted the opinion of Jarka Corp. v. Hughes, 299 F.2d 534 (2d Cir.1962), which involved construction of the identical provision of the Longshoremen's and Harbor Workers' Compensation Act in regard to the mistake of fact basis for modification of a previous award. In Jarka the court held:
We stated in a footnote to that opinion that the Board might be assisted by Hall v. Seaboard Maritime Corp., 104 So.2d 384, 387 (Fla.App. 1958) where the Florida Court of Appeals, in construing a provision of Florida's compensation act similar to the Alaska and federal provisions, stated:
Subsequent to these decisions, the United States Supreme Court, in O'Keeffe v. Aerojet-General Shipyards, Inc., 404 U.S. 254, 92 S.Ct. 405, 30 L.Ed.2d 424 (1971), indicated that the Board may be entrusted with somewhat broader discretion then indicated in Jarka and Hall. Because of the O'Keeffe decision, we find it necessary to consider the question of whether the Board must reconsider all prior evidence whenever a mistake of fact is alleged.
And see Forth v. Northern Stevedoring & Handling Corp., 385 P.2d 944, 947-948 (Alaska 1963); 3 Larson, The Law of Workmen's Compensation §§ 80.00, 80.10 at 244-248 (1971).