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Torresan v. Trucking6/12/2002
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
No. 1084
MEMORANDUM OPINION AND JUDGMENT
Appellant presents five points on appeal. We have considered each of them and find them to be without merit. In addition, each of the points is either mooted or subsumed by the superior court's conclusion that the board's decision was supported by substantial evidence.
The decision of the superior court affirming the final order of the Alaska Workers' Compensation Board is AFFIRMED for the reasons expressed in the opinion of the superior court, attached as an appendix.
APPENDIX
THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE
DARYLE TORRESAN, Appellant, v. BOBBIE JACK TRUCKING and ACE PROPERTY AND CASUALTY INSURANCE COMPANY, Appellees.
Case No. 3AN-00-3696 CI
AWCB Case No. 199225562
DECISION AND ORDER
I. INTRODUCTION
Daryle Torresan appeals from the Decision and Order of the Alaska Workers' Compensation Board (Board) dated June 16, 2000, in AWCB Case No. 199225562 denying him compensation and medical benefits. This is the third appeal of this claim. The Board had previously issued decisions on August 24, 1995, and September 15, 1997, also denying the compensability of Torresan's claim. The first decision was reversed by Judge Gonzalez for failure to apply the correct legal standard to the claim. Torresan, 3AN-95-8115 CI (April 16, 1996). The second decision was reversed by Judge Murphy due to the Board's failure to allow Torresan to submit new evidence at hearing. Torresan, 3AN-97-08492 CI (Oct. 2, 1998).
Following the last reversal, the parties returned to the Board for a third hearing on the merits of Torresan's claim. Both parties were allowed to submit all evidence they felt relevant to the claim. Following the hearing, the Board issued its Decision and Order dated June 16, 2000. The Board denied Torresan's claim in its entirety. For reasons set forth below, the decision of the Board is hereby affirmed.
II. STANDARD OF REVIEW
The Alaska Workers' Compensation Board's factual determinations are reviewable under the substantial evidence test. Yahara v. Construction and Rigging, Inc., 851 P.2d 69 (Alaska 1993). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978).
When examining a Board determination under the substantial evidence test, the court does not re-weigh evidence. Childs v. Copper Valley Electric Ass'n, 860 P.2d 1184, 1189 (Alaska 1993). If medical experts disagree upon the ultimate cause of an employee's injury then, as a general rule, "it is undeniably the province of the board and not court to decide who to believe and who to distrust." Id. The test in the present appeal is whether, based on the whole record, a reasonable mind could accept a decision of non-compensability. Safeway, Inc. v. Mackey, 965 P.2d 22, 27 (Alaska 1998).
III. DISCUSSION
The facts of this case are set out in detail in the Board's June 16, 2000, Decision and Order at pages 3-13. After reviewing all of the evidence, the Board concluded that Torresan's claim was not compensable. After reviewing the evidence relied upon by th
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