A firefighter developed prostate cancer when he was in his mid-fifties, after working for nearly 30 years in this occupation. He filed a workers' compensation claim under a
II. FACTS AND PROCEEDINGS
John Adamson retired in 2011 after working as a firefighter for the Municipality of Anchorage for over 30 years. He was diagnosed with prostate cancer in August 2008, and he filed a report of occupational injury or illness with the Board in October. The Municipality filed a notice of controversion on the basis that it had received no evidence the cancer arose out of a work-related exposure; it also quoted a letter from Adamson's doctor that the doctor had no evidence the cancer was work related.
Adamson filed a written workers' compensation claim seeking temporary total disability (TTD) and medical expenses. Adamson's claim was based on AS 23.30.121, a new statute effective August 19, 2008.
The Municipality asked Dr. Thomas Allems, a toxicology and occupational and environmental medicine specialist, to review Adamson's records and "determine if his job as a firefighter contributed to his prostate cancer." Dr. Allems's report summarized medical records he reviewed and then discussed medical literature related to prostate cancer. According to Dr. Allems, it was "indisputable" that firefighters "are exposed to carcinogens in smoke and post-fire gasses." He wrote, however, that "[t]he toxicological literature has failed to identify a known or probable prostate carcinogen." He also stated, "The firefighter data are consistently not compelling as to an increased risk of prostate cancer in this occupational
After Dr. Allems's report, the Municipality filed another notice of controversion. This time the Municipality said that the Department of Labor had not yet defined "qualifying medical examination" for purposes of attaching the presumption and the statute had not yet been "activate[d]" as a result.
In early 2011 the Board's regulation defining a qualifying medical examination for purposes of the statute became effective. The regulation requires that the initial examination required by AS 23.30.121(b)(3)(A) "occur no later than 30 days" after employment as a firefighter and mandates specific testing, including "an initial screening for the cancers listed in AS 23.30.121(b)(1)(C)."
The Board held a hearing on Adamson's claim in June 2011. Adamson and Dr. Allems were the only witnesses. Adamson testified about his firefighting career, his medical examinations, and his cancer diagnosis; he also described fires he had fought to demonstrate his exposure to carcinogens. Dr. Allems's testimony was limited because the Board chair sustained multiple objections after ruling Dr. Allems was not permitted to testify that there is no causal relationship between firefighting and prostate cancer; as a consequence the Municipality made several offers of proof. According to Dr. Allems, there are no known carcinogens for prostate cancer; he therefore would have given the opinion that Adamson's cancer was not related to his work as a firefighter. Dr. Allems agreed that Adamson was exposed to carcinogens at work. Dr. Allems also testified, consistently with his report, that Adamson had no personal risk factors, in effect concluding that the cause of Adamson's cancer was unknown, which in his opinion was "the normal state of affairs."
The Board panel majority decided that Adamson's cancer was compensable and ordered the Municipality to pay past and future medical benefits, some past TTD, and costs and attorney's fees. One panel member dissented on the basis that the firefighter presumption did not apply, but that if it did, the Municipality had rebutted it and Adamson had not proved his case by a preponderance of the evidence.
On appeal the Commission panel also was divided in deciding the case. The majority agreed with the Board that Adamson had attached the presumption of compensability; one panel member dissented from that part of the decision. All panel members agreed that the Municipality could rebut the presumption of compensability in AS 23.30.121 through Dr. Allems's testimony that there is no known carcinogen for prostate cancer and that the Board erred in refusing to consider this evidence; the Commission remanded the case to the Board for evaluation of the evidence.
III. STANDARD OF REVIEW
In an appeal from the Alaska Workers' Compensation Appeals Commission, we review the Commission's decision rather than the Board's decision.
Whether a statute requires substantial or strict compliance is a legal question,
A. We Do Not Decide Whether The Statute Violates Equal Protection.
The Municipality raised the question of AS 23.30.121's constitutionality before both the Board and Commission; both declined to consider the question because it was beyond their jurisdiction. The Municipality argued in its briefing to us that the statute violates the equal protection rights of employees, such as garbage collectors, who also are exposed to environmental toxins in their work. Relying on previous decisions from this court, Adamson responded that the Municipality lacked standing to assert an equal protection challenge, and that the statute did not violate equal protection.
The State intervened on the question of the statute's constitutionality; it argued in its brief that the Municipality lacked standing to assert the equal protection rights of third parties. It also agreed with Adamson and argued that the statute does not treat similarly situated groups differently. The State also argued that the statute bears a fair and substantial relationship to a legitimate state interest.
Shortly before oral argument the Municipality sought to withdraw the constitutional
B. The Commission Correctly Concluded That Adamson Attached The Presumption Of Compensability.
The Municipality contends that the Commission erred in deciding Adamson attached the presumption of compensability in AS 23.30.121. Its argument has several components. It argues first that Adamson could not attach the presumption of compensability because he did not strictly comply with statutory and regulatory requirements; in the Municipality's view, strict compliance with both statutory and regulatory requirements is a prerequisite to qualifying for the firefighter presumption. The Municipality also argues that Adamson did not attach the presumption because he did not show that he was exposed to a known carcinogen for prostate cancer. Adamson counters that the standard for compliance should be substantial compliance rather than strict compliance — particularly in his case, when there was no way he could strictly comply with a requirement that his initial 1980 medical examination be recorded on a form the Board did not develop until after he filed his written workers' compensation claim in 2010. Adamson also maintains that he provided adequate evidence he had been exposed to known carcinogens associated with prostate cancer.
1. Adamson only needed to show substantial compliance with the medical-examination requirements.
Both the Board and Commission panel majorities decided that substantial compliance was the applicable standard to use in evaluating Adamson's claim; their analyses were based on the distinction we have recognized between mandatory and directory procedural statutes.
The Municipality first contends that the statute is substantive rather than procedural, rendering the cases upon which the Commission relied inapplicable. The Municipality then argues that substantive laws require strict compliance and that Adamson did not strictly comply with the regulatory requirements for medical examinations. Adamson asks us to adopt the agencies' analyses and hold that the statute is a directory, procedural statute requiring only substantial compliance. He argues alternatively that the regulatory requirements cannot apply to him because regulations can only have prospective application and the regulation on which the Municipality relies was promulgated after he filed his claim.
Although we agree with the Commission that Adamson could attach the presumption by substantially complying with the medical-examination requirements in AS 23.30.121, our legal analysis differs from the Commission's. We do not consider the substantive-procedural distinction critical in this case. The question of substantial or strict compliance arises in Adamson's case because of the tension between legislative intent and the Board's regulation defining a qualifying medical examination. Here the legislature
We have "adopted the doctrine of substantial compliance" in order to carry out legislative intent and give meaning to all parts of a statute "without producing harsh and unrealistic results."
We do not find convincing the Municipality's argument that strict compliance is always required when a statute is substantive. Outside of the directory-mandatory context, we have not limited substantial compliance to procedural statutes. For example, in Grimm v. Wagoner we held that substantial compliance was the standard for measuring candidates' compliance with substantive disclosures for elected office.
In the context of AS 23.30.121, substantial compliance is conduct that falls short of strict compliance but affords the employer protection from claims based on a firefighter's preexisting condition; the initial and subsequent medical examinations are required by statute to show no "evidence of the disease." We do not interpret the legislative history as indicating that a firefighter must strictly comply with any regulatory requirements the Board later adopted, as the Municipality contends. On the contrary, legislative history indicates that legislators thought the examinations firefighters were already undergoing would satisfy the statute. For example, Senator Hollis French, a sponsor of a similar bill in the Senate, stated that most fire departments require annual physical exams and 90 percent of those exams would satisfy the requirement.
As in Grimm, Adamson's case involves more than a determination that substantial compliance is the legal standard; we also must consider whether the medical examinations Adamson was given both at the time of hire and in the ensuing years in fact substantially complied with the applicable requirements. The Commission concluded that Adamson substantially complied with the requirements that the firefighter be given "a qualifying medical examination upon becoming a firefighter" and annual medical examinations in the first seven years of employment, none of which showed evidence of prostate cancer, because: (1) he was given a medical examination that showed no evidence of prostate cancer when he was first hired in 1980; (2) he was given annual physicals beginning in the 1990s that showed no evidence of prostate cancer until he was diagnosed with the disease in 2008; and (3) he was given a number of prostate-specific antigen (PSA) blood screening tests after 1993 and all of the results were within normal limits.
The Municipality argues on appeal that Adamson's medical examinations cannot in fact serve as a means to attach the presumption under AS 23.30.121 because they "included none of the statutory and regulatory elements" and because "[n]one of the examinations
In determining whether Adamson's examinations substantially complied with the statutory requirements here, we look at the purpose the examinations serve in the presumption statute as well as the tests Adamson underwent as part of the exams.
The Municipality conceded at oral argument before us that Adamson showed no sign of prostate cancer at any of his medical examinations prior to 2008. Adamson's testimony, which the Board found credible, showed that he had undergone screening for prostate cancer at most, if not all, of his employment-related medical examinations, including his initial examination.
2. Adamson properly attached the presumption for his occupational disease.
Because Adamson's occupational disease was a listed cancer, in addition to showing that he was given medical examinations substantially complying with the statute he also needed to show that "while in the course of employment as a firefighter, [he] was exposed to a known carcinogen, as defined by the [IARC] or the National Toxicology Program, and the carcinogen is associated with a disabling cancer."
The Board found that Adamson established through his testimony that "he was exposed to soots, containing cadmium and arsenic, to benzene, and to diesel exhaust containing benzene" and that soots, cadmium, arsenic, and benzene are all known
Adamson additionally had to show that a carcinogen to which he was exposed is "associated with a disabling cancer."
Resolution of this question requires us to interpret the statute. We interpret statutes according to reason, practicality, and common sense, considering the meaning of the statute's language, legislative history, and purpose.
We begin our interpretation of the statute by looking at its language. Words in statutes are construed according to their common meaning, with technical words construed according to their "appropriate meaning."
Both the NTP and the IARC classify chemicals as carcinogenic, but the agencies use different categories in their classifications. The NTP lists some substances as "known to be human carcinogens" and others as "reasonably anticipated to be human carcinogens."
The IARC has four classifications of carcinogenicity, with one classification having two subgroups; these classifications range from "carcinogenic to humans," when a causal relationship has been established between the agent and cancer, to "probably not carcinogenic to humans."
In his hearing testimony, Dr. Allems referred to a 2006 epidemiology textbook with tables summarizing information from the IARC.
From this information, we conclude that the agencies consider substances to be known carcinogens when the agencies have decided there is strong enough evidence to show a causal relationship, but that, at least in the IARC materials, an "association" supports a lower level of classification. Dr. Allems agreed that "cause" is a higher standard than "associated." The general dictionary definition of "associated" accords with this contrast: The general definition of "associated" is "link[ed]."
The Municipality's interpretation would limit the statute's application to carcinogens shown to cause the enumerated cancers rather than applying it to chemicals linked to a cancer after those chemicals have been found to cause cancer at other sites. As an example, the IARC monograph about arsenic and arsenic compounds, included as an appendix to Adamson's brief, states that certain arsenic compounds "cause cancer of the lung, urinary bladder, and skin" and "a positive association has been observed between exposure to arsenic and inorganic arsenic compounds and cancer of the kidney, liver, and prostate." The 2006 treatise upon which Dr. Allems relied in his testimony observed the evolving nature of knowledge about carcinogenicity, noting that "over 95% of today's probable and possible occupational carcinogens had not even been mentioned as of 1964, and about one-third were not mentioned as of 1987."
We reject the Municipality's interpretation because that interpretation would render parts of the statute meaningless. Dr. Allems would have testified that there is no known carcinogen for prostate cancer because the prostate was not listed as a cancer site in the Group 1 table in the treatise, of the eight enumerated cancers in AS 23.30.121(b)(1)(C), only three — leukemia, non-Hodgkin's lymphoma, and bladder cancer — are clearly listed in the Group 1 table in the treatise.
Relying on cases about attaching the presumption under AS 23.30.120 in complex medical cases,
Considering the evidence available at the hearing, we conclude that the Commission correctly concluded that substantial evidence supported the Board's decision that Adamson attached the presumption in AS 23.30.121. Adamson provided the Board with substance profiles from the NTP for arsenic, benzene, and cadmium, all stating that these substances are "[k]nown to be human carcinogens" and cited studies showing an association between the substances and prostate cancer.
In sum, we hold that Adamson was required to (and in fact did) substantially comply with the requirements for medical examinations in AS 23.30.121. Adamson fulfilled the other requirement for attaching the presumption by presenting evidence that in his work as a firefighter, he was exposed to known carcinogens as identified by the NTP and that the carcinogens are associated with prostate cancer.
C. It Was Error for The Commission To Decide That The Municipality Could Rebut The Presumption In AS 23.30.121 Through Testimony That There Is No Known Carcinogen For Prostate Cancer.
Construing AS 23.30.121, the Commission decided that the Board erred in failing to admit or evaluate Dr. Allems's testimony. In the Commission's view, the Board read the statute too narrowly in considering the scope of possible bases which an employer could assert to rebut the presumption in AS 23.30.121. The Commission thought Dr. Allems's testimony that there was no known carcinogen for prostate cancer could be sufficient to rebut the presumption because, in its view, the legislature did not intend to prevent an employer from presenting evidence that could undercut any of the criteria for attaching the presumption, including evidence that occupational exposure to carcinogens can cause prostate cancer. The Commission reversed the Board's exclusion of Dr. Allems's testimony and remanded the case for the Board to consider and weigh his testimony against Adamson's evidence.
Adamson argues that the legislature intended to limit the type of evidence an employer can use to rebut the presumption. Relying in part on cases from other jurisdictions, Adamson contends that the legislature did not intend a firefighter's employer to rebut the presumption with "[m]edical evidence that simply attacks the link established by the legislature between firefighter exposures and the particular listed disease." The Municipality responds that the legislature did not determine that firefighting causes cancer and that the statutory language and legislative history support its position that it could rebut the presumption through Dr. Allems's testimony.
To resolve this dispute, we must again interpret the statute. Alaska Statute 23.30.121(a) provides in pertinent part, "The evidence [to rebut the presumption] may include the use of tobacco products, physical fitness and weight, lifestyle, hereditary factors, and exposure from other employment or nonemployment activities." The Commission thought the use of "may include" showed that the legislature did not intend to limit in any way the type of evidence an employer could use to rebut the presumption.
We disagree with the Commission's interpretation of the statute. The words "may include" certainly indicate that the list in the statute was not meant to be exhaustive.
The Municipality contends that the legislative history supports its reading of the statute. The little legislative history about rebutting the presumption is ambiguous at best. The Municipality cites as "[m]ost telling" a Senate Finance Committee discussion in which senators questioned inclusion of prostate cancer in the bill because of concerns
Dr. Allems would have testified that there is no known carcinogen for prostate cancer; he also gave the opinion in his report that "[t]he firefighter data are consistently not compelling as to an increased risk of prostate cancer in this occupational group." Essentially, the Municipality sought to rebut the presumption that Adamson's cancer was due to exposure to toxins by demonstrating that the legislative determination — that firefighters' occupational exposures to carcinogens are significant enough that they should be afforded a presumption that certain cancers are occupational diseases — was wrong. We previously have refused to permit litigants to attack legislative findings,
We also find persuasive the construction of similar statutes by other state courts. As Adamson points out, courts in other states have uniformly held that an employer may not rebut similar presumptions by attempting to show that there is no relationship between the occupation and the disease. For example, in City of Frederick v. Shankle, the Maryland Court of Appeals stated that to rebut the presumption that heart disease or hypertension was a compensable occupational disease for certain police officers and firefighters, the employer had to present evidence "particular to the claimant ... and not a total and absolute denial of the presumption."
Cases from other courts cited by the Municipality are not to the contrary. In Worden v. County of Houston
We agree with these cases and hold that the evidence used to rebut the legislatively created presumption in AS 23.30.121 must be personal to the claimant. The Municipality's argument that rejecting this type of rebuttal evidence will create an irrebuttable presumption is meritless. The legislature provided a means by which employers could rebut the presumption: presentation of evidence personal to the claimant showing that the specific disease in a particular firefighter could have been caused by another mechanism personal to that firefighter, such as smoking. In Adamson's case, that evidence was absent, as the Municipality's expert recognized. Because the only evidence the Municipality attempted to introduce to rebut the presumption was not relevant under our interpretation of the statute, we reverse the part of the Commission's decision about rebuttal evidence. The Board correctly determined that Dr. Allems's causation opinion was inadmissible and properly excluded it. Because the Municipality failed to offer any relevant, admissible evidence to rebut the statutory presumption here, it failed to rebut the presumption of compensability.
For the foregoing reasons, we AFFIRM the Commission's decision that Adamson attached the presumption of compensability in AS 23.30.121. We REVERSE the Commission's decision that the Municipality could rebut the presumption through the opinion evidence it offered, and we REMAND this case to the Commission with instructions to reinstate the Board's decision.