This is an appeal from the judgment of the superior court reviewing a decision of the Alaska Workmen's Compensation Board.
About May 24, 1969, Peter Libor, while employed by the Aspeotis Construction Company, was struck in the small of his back by a rock which had been accidentally dislodged. At the time, appellee was in a bent over position standing in a ditch. The rock, which fell from above, was approximately eight inches across and weighed between four and five pounds. The injury was diagnosed as a fracture of the transverse process of the right side of vertebrae L2 and L3. Libor was absent from work for about two weeks. He then returned to work until February 25, 1971, at which time, because of increased pain in his low back, he went to see Dr. Tryon Wieland in Anchorage.
Dr. Wieland prescribed exercise and physical therapy. When that procedure afforded little relief, Libor consulted Dr. George A. Lyon, who diagnosed Libor's
After the operation, Libor filed a claim with the Alaska Workmen's Compensation Board, contending that his herniated disc was a result of his May 24, 1969 accident. Libor's claim was controverted by the appellant.
A hearing was held before the board on July 20, 1971. At the hearing Mr. Libor testified that he suffered pain in his lower back from May 24, 1969, and that this pain had increased substantially by February, 1971. He testified that between May 24, 1969, and February 25, 1971, he suffered no intervening injuries.
It was, however, "apparent to counsel and to the board that there was insufficient medical evidence available to determine the issues." It was agreed to hold the record open for submission of medical reports, particularly an orthopedic examination performed by Dr. Thomas F. Kiester on September 22, 1971.
The clinical notes of Dr. Wieland and Dr. Lyon were placed in the record, as well as a letter dated September 28, 1971, from Dr. Wieland to Libor's attorney. In that letter he states as follows:
A "Physician's Report of Injury", signed by Dr. Kiester and dated September 27, 1971, was also put in the record. In response to the question, "Is accident above referred to the only cause of patient's condition?", Dr. Kiester had answered, "Yes."
However, on February 7, the board received an affidavit from Dr. Kiester, dated January 20, which stated, in part:
The board's decision was issued on February 15, 1972. A supplementary decision was issued April 28, 1972.
In finding for the claimant in its initial decision, the board relied not only upon a factual finding that Libor's problems were work-related, but also upon its reading of Beauchamp v. Employers Liability Assurance Corp., 477 P.2d 993 (Alaska 1970), and Thornton v. Alaska Workmen's
In the supplementary decision the board said:
Appellant first sought review of this award in the superior court. There it asserted that there was no substantial evidence to support the board's finding that Libor's herniated disc was caused by his injury of May 24, 1969. Libor, of course, argued to the contrary. Appellant argued, additionally, that the board erroneously applied the statutory presumption of compensability, contained in AS 23.30.120(1)
The superior court held that any reliance on the statutory presumption was harmless error because, even if the presumption was not available, there was, nevertheless, substantial evidence to support the award. It therefore affirmed the board's decision. Essentially the same arguments are presented by the parties in this appeal.
It is true that in Anchorage Roofing Co., Inc., v. Gonzales, 507 P.2d 501, 504 (Alaska 1973), we alluded to the rule that once the employer has come forward with competent evidence overcoming the effect of the statutory presumption, the presumption drops out, and it is incumbent upon the claimant to produce substantial evidence which demonstrates that his claim is compensable. Appellant's argument assumes, however, that there was not substantial evidence, apart from the presumption, to support the award. We will, therefore, turn first to the question of whether the award can be sustained without reference to any presumption.
In Beauchamp v. Employers Liability Assurance Corp., 477 P.2d 993, 996-97 (Alaska 1970), we held that uncontradicted lay testimony, coupled with inconclusive medical testimony, can be enough to support a finding by the board that a physical condition is causally connected to an accidental injury sustained in the course of the employment. This holding is based in part on the rationale expounded by Professor Larson in his well-known treatise:
These principles are dispositive of the case at bar. Libor testified that he experienced periodic pain from May of 1969 until February of 1971. Dr. Wieland's statements reveal that he was unable to say with reasonable certainty that the herniated disc condition was work-related, but he did state that the question could best be resolved by the testimony of the patient as to how much back pain was experienced in the interim period, and that the original injury could have contributed to the ultimate herniated disc condition. Dr. Kiester's affidavit stated that the 1969 injury could not, with a reasonable degree of medical certainty, be said to be the cause of the herniated disc condition. It is noteworthy that Dr. Kiester did not positively exclude a causal connection; he was merely unable to establish it.
Given this state of the record, the board could properly rely upon the combination of the claimant's lay testimony and the inconclusive medical testimony of Dr. Wieland. The two together constituted substantial evidence on the element of work connection.
The board could additionally rely upon the statutory presumption contained in AS 23.30.120(1), that the claim was within the act, as the presumption was not overcome by substantial evidence to the contrary.