BOOCHEVER, Chief Justice.
The bizarre murder of Raymond J. Gomes gives rise to this appeal concerning the statutory presumption of compensability contained in the Alaska Workmen's Compensation Act. Gomes' employer, Beef & Bourbon, and its insurance carrier, Fireman's Fund American Insurance Companies (hereinafter collectively referred to as "the employer"), seek reversal of the superior court's affirmance of the Alaska Workmen's Compensation Board's finding of compensability.
In the early morning of July 11, 1972, Raymond J. Gomes, Jr. was shot and killed at the Beef & Bourbon Restaurant in Anchorage where he was employed as a bartender.
The Anchorage Police Department undertook an extensive investigation of the murders. At the hearing before the Workmen's Compensation Board on April 4, 1973, the employer presented as its witness Inspector Ronald J. Rice, officer in charge of the investigation. Rice testified that there was no evidence to substantiate any presumption that the death was motivated by robbery, by an irate customer, by reason of a love triangle, or by mistaken identity. The police had investigated the possibility of the involvement of organized crime and narcotics, but to no avail. From the details of the shooting and the method employed by the killer,
The Alaska Workmen's Compensation Board held that Officer Rice's testimony did not constitute substantial evidence to overcome the presumption of coverage set forth in AS 23.30.120(1) as follows:
Since Gomes was killed while at work, the Board properly read AS 23.30.120(1) as requiring a presumption that the killing was related to his employment. Although Officer Rice gave his opinion that Gomes was
At the core of this appeal is the question of what effect is to be given to the statutory presumption that a claim for compensation comes within the provisions of the statute in the absence of substantial evidence to the contrary.
In Anchorage Roofing Co., Inc. v. Gonzales, 507 P.2d 501 (Alaska 1973), we were confronted with a similar question as to the operation of the statutory presumption in AS 23.30.120(1). In that case, Gonzales was employed by Anchorage Roofing Co. and was flying to Homer, Alaska for the purpose of repairing a roof when the plane, piloted by him, crashed near Lake Tustemena. While enroute to Homer, Mr. Gonzales intended to survey the terrain around the lake for a landing strip to be used in a future hunting trip. We held that the employer had the burden of going forward with the evidence on the issue of whether the injury arose outside the scope of employment, but that once substantial evidence is introduced, the presumption drops out, and the burden of proving all elements of the claim falls on the plaintiff.
Here, we are confronted with the threshold question of whether substantial evidence was introduced by the employer so as to thrust the burden on the claimant. Here the claimant did not otherwise come forward with evidence to establish that Gomes' death arose out of his employment.
At most, Officer Rice's testimony may be considered as evidence establishing a likelihood that Gomes was killed by someone
There are two means by which the presumption of compensability could be overcome. One is by affirmative evidence indicating that the killing was not work-connected. The other is by eliminating all reasonable possibilities that the killing was work-connected. Examples of affirmative evidence indicating that the death was unrelated to employment would be evidence that he was shot because of involvement in a love triangle, because of some hazardous nonwork-connected endeavor such as the narcotics trade or evidence that he had voluntarily and wilfully committed suicide.
Our review of the testimony of Officer Rice leads us to the conclusion that a reasonable mind would not accept it as adequate to support the elimination of probabilities that the death was work-connected. It is possible that a reasonable mind might accept the evidence of failure to take money from the bar as evidence that robbery was not a motive. The one customer whose car was found at the scene of the crime was investigated and eliminated as the perpetrator of the crime. Even though inquiries may have been made pertaining to customers' grudges, such inquiries did not eliminate the possibility of some customer having a real or imagined slight leading to the shooting.
We agree with the Board's statement that:
In the absence of affirmative evidence indicating the cause of Gomes' death, we cannot say that the Board erred in holding that the presumption was not overcome. In fact, this would appear to be the classical type of case where the presumption should apply.
The present case is somewhat analogous to Employers Commercial Union Co. v. Libor, 536 P.2d 129 (Alaska 1975), although an unexplained death was not there involved. In Libor, the question was presented as to whether a work-related back injury was the cause of a subsequently discovered herniated disc which required surgery. One doctor testified that he could see no reason why there could not be a relationship between the original injury and the subsequent disability, but it would be impossible for him to make the causal connection. Another stated that in his opinion the original accident "cannot, with a reasonable degree of medical certainty, be said to be either the cause of or to have precipitated [the] herniated disc". That doctor, thus, could not find a basis for an opinion that the disability was work-related. Nevertheless, he gave no opinion that it was not work-related. Under those circumstances, we held that the presumption contained in AS 23.30.120(1), that the claim was within the act, was not overcome. The mere inability to state that the disability was work-related did not constitute substantive evidence.
In the instant case, accepting Officer Rice's opinion testimony that Gomes was the target of a planned attack, we are left with an unexplained motive for the killing. This is precisely the type of situation where the presumption of AS 23.30.120(1) should operate: no motive has been found; no one knows why the assault was committed; no plausible explanation showing the lack of employment connection has been suggested.
ERWIN, Justice (dissenting).
I disagree with the conclusion of the majority that the evidence presented on behalf of the employer was not substantial evidence which would cause the presumption to disappear.
The definition of substantial evidence found in Anchorage Roofing Co., Inc. v. Gonzales, 507 P.2d 501, 503 (Alaska 1973), is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
To me the testimony by Officer Rice concerning the exhaustive investigation into the murder by the Anchorage Police Department and his expert opinion that it was a non-job related, professional-contract killing can only be described as evidence adequate to support a conclusion.
While I have never been able to explain a finding by an appellate court stating that reasonable minds cannot differ on a particular question when a reasonable judge dissents as to that view, such is the case herein. I would reach the opposite conclusion and would reverse the decision of the superior court and remand the case to them with instructions to order the Workmen's Compensation Board to dismiss the claim.