Opinion
Supreme Court No. S-13291.
October 6, 2010.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Stephanie E. Joannides, Judge, Superior Court No. 3AN-03-09792 CI.
Appearances: David H. Davis, Sr., pro se, Chugiak, Appellant. Robert L. Griffin and Aaron M. Sandone, Griffin Smith, Anchorage, for Appellees.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen, and Stowers, Justices.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
A worker on the Whittier Tunnel project was injured when the vehicle he was riding in derailed and he hit his head. After initially controverting his claim, the employer paid workers' compensation benefits related to a neck condition. The worker later asked for benefits for pain in his lower back, which he said arose after surgery for the neck condition. The Alaska Workers' Compensation Board rejected the employee's claim, finding that the employee's low back condition was not work related. The superior court affirmed the Board's decision. Because substantial evidence in the record supports the Board's findings, we affirm.
II. FACTS AND PROCEEDINGS
David Davis worked for Kiewit Construction Company during construction of the Whittier access tunnel in 1999. On April 14, 1999, the vehicle he was riding in derailed and Davis hit his head hard enough to break the suspension inside his hard hat. He felt unstable as he walked from the accident site, and he felt "tenderness." Davis saw doctors at Medical Park Family Care in Anchorage on April 20, 1999. An x-ray taken at that time showed a narrowed disc space in the cervical spine, but the reviewing physician "[could] not tell if it [was] old or new." Davis performed light duty work after the accident and was referred in June 1999 to J. Michael James, M.D. for evaluation. An MRI of the cervical spine in July 1999 showed "[d]isc degeneration . . . [and] neural foraminal impingement at multiple levels."
Davis was laid off in December 1999 and he filed a written claim for temporary total disability (TTD). Dr. James did not think that Davis was disabled from working, and Kiewit controverted the claim. Davis consulted with J. Paul Dittrich, M.D. in early 2000 about neck pain, and with John G. Finkenberg, M.D., an orthopedist, for neck and shoulder complaints and headaches. Davis moved to California in March 2000 and continued treatment with Dr. Finkenberg. Kiewit arranged an employer's independent medical evaluation (EIME) in March 2000 with Lynne Bell, M.D., a neurologist, and Donald Peterson, M.D., an orthopedic surgeon. They concluded that the accident had caused only a cervical strain and had not "contributed to the degenerative condition of the cervical spine." Dr. Finkenberg recommended surgery, which Kiewit controverted based on the EIME physicians' opinions. The Board ordered a second independent medical evaluation (SIME) with Marvin H. Bloom, M.D. Dr. Bloom concluded that Davis needed surgery for a work-related injury. After Dr. Bloom's report, Kiewit paid for surgery and TTD from January 2000.
Dr. Finkenberg performed surgery on Davis's cervical spine on October 4, 2000; the surgery included harvesting bone from Davis's pelvis for a graft to his neck. Shortly after the surgery, Davis began to complain of low back pain and numbness and tingling in his thigh or thighs. He attributed the low back pain to the surgery or the accident. Dr. Finkenberg ordered radiological studies, which showed that Davis had congenital spinal stenosis. Dr. Finkenberg thought it was unlikely that Davis's lumbar spine problems were related to either the neck surgery or the original accident. He indicated that Davis had disc desiccation as well as spinal stenosis and that, while trauma could accelerate disc desiccation, it was "almost impossible" to tell whether the accident had accelerated Davis's disc desiccation without a pre-injury MRI. Dr. Finkenberg doubted that the accident was a cause of the low back pain because Davis had not complained of low back pain closer to the time of the accident. Dr. Finkenberg also said that he had never heard of anyone developing low back pain from positioning during cervical surgery.
Davis moved back to Alaska in 2001. He saw Edward Voke, M.D. on referral from Dr. Finkenberg. Dr. Voke concluded that Davis was not medically stable, was not a candidate for low back surgery, and was more appropriately referred to a physical medicine specialist for chronic pain rehabilitation. Kiewit controverted Dr. Voke's medical care.
On February 25, 2002, Davis filed a written workers' compensation claim for TTD from January 2002, the month of his visit to Dr. Voke. The claim listed groin and lumbar pain as his injuries. Later prehearing conference summaries listed the issues in the claim as including medical costs and the compensability of the lumbar spine injury.
The Board held a hearing on the claim on May 15, 2003, and clarified at the beginning of the hearing that the issue before it was the compensability of the low back injury. Davis proposed two ways his back problems were work related: the low back was injured either in the accident itself or during neck surgery. Davis and his wife testified on his behalf. Dr. Finkenberg, Dr. Voke, and Dr. Dittrich testified by deposition.
Dr. Dittrich discussed his treatment of Davis, focusing mainly on the absence of any complaints of low back pain before January 2002. He testified that he had never heard of a patient having "serious or . . . permanent" problems because of surgical positioning. Dr. Dittrich also testified that he had "no reason to suspect any relationship" between the work injury and the low back pain, but clarified that he had never examined Davis for back pain.
Dr. Voke initially testified that it was "probable" that Davis's low back pain was work related. He indicated that Davis had some preexisting disc problems. He linked Davis's back complaints to his work-related injury mostly due to timing: because Davis had not had back pain before the surgery, and because Davis had preexisting back problems, Dr. Voke thought that something connected with the surgery was a causal factor in the low back pain. In response to Kiewit's questioning, Dr. Voke said it "would be reasonable" to defer to Dr. Finkenberg's opinion, but he later reiterated that this type of injury could be a risk of surgery.
Dr. Finkenberg testified that it was unlikely that the low back pain was caused by the derailment because if the accident had caused the problem, Davis would have shown some symptoms "within the first few weeks." Dr. Finkenberg remembered Davis having "some discomfort in his back" before the surgery, but he acknowledged that he had not made a note of it in Davis's chart. In answer to a question about whether the Board should "draw any significance from the fact that Mr. Davis did not report low back pains" shortly after the accident, Dr. Finkenberg said:
[Y]ou have to look back and try to decide whether it's just a matter of that pain being minuscule compared to what was going on with his neck.
Obviously, somewhere along the line it has to be documented that he at least mentioned it. Is it possible that his back became of greater concern to him once the discomfort in his neck and headaches had resolved? I have seen that before. But once again, people need to at some point have mentioned it and it can't be just sort of down the road.
Dr. Finkenberg also discussed the cause of Davis's thigh numbness and tingling. He testified that it was "[p]robably unlikely" that Davis's 1999 injury caused his complaint of tingling in one of his thighs in April 2000 but also said that the low back problem was the most likely explanation for the bilateral thigh discomfort that Davis experienced in 2002. But Dr. Finkenberg did not consider surgical positioning or other post-operative care to be a cause of the numbness Davis described after his surgery.
Davis testified that he began to have groin and low back pain after the surgery. He pointed out that the nursing notes from his hospital stay showed numbness in his thigh shortly after the surgery. He described how he began to feel pain in the groin area when he walked shortly after surgery, and he testified that the pain continued. He also indicated that he had numbness and tingling in his legs when he began physical therapy in November 2000. Both Davis and his wife testified about a block that was attached to his back after the surgery, which they thought contributed to his back problems.
In its decision on Davis's claim, the Board decided that it was a complex medical case and that Davis needed to present expert medical testimony to attach the presumption of compensability. The Board first decided that Davis had not attached the presumption because Dr. Voke "deferred his opinion regarding causation to Dr. Finkenberg, who categorically denied that the employee's low back condition was work related." But the Board also did an alternative analysis that assumed Davis had attached the presumption and completed the required three-step presumption analysis. In this analysis, the Board found that Kiewit had rebutted the presumption through the opinions and testimony of Dr. Finkenberg, Dr. Dittrich, and Dr. Peterson. At the third stage, the Board gave little weight to Dr. Voke's testimony and relied on Dr. Finkenberg, Dr. Dittrich, and Dr. Peterson to find that Davis's low back pain was not work related.
Davis appealed to the superior court where he argued that the Board cut him off at the hearing and did not let him present all of the issues he wanted to. The superior court's decision noted that Davis "expressed some concern that he was not able to submit evidence in the form of notes from Drs. White and Bastuba to the Board documenting his back pain complaints." Even though its review of the record did not show that Davis had tried to introduce the two records at the hearing, the superior court remanded the case to the Board for consideration of these two pieces of evidence. The superior court retained jurisdiction over the case.
Dr. Bastuba, a urologist, saw Davis on June 1, 2000 on referral because of "flank pain" that developed while Davis was being treated for an unrelated illness. The referring physician thought that a kidney infection was causing Davis to have back flank pain.
The two pieces of evidence were potentially relevant to whether Davis had complained of low back pain before the surgery, closer to the time of his work-related accident. One of the pieces of evidence was a billing record from an April 1999 visit to Dr. White, Davis's treating physician at the time. The words "displaced," "lumbar," and a third, indecipherable word were written on the record. The chart notes from the associated visit did not mention lumbar complaints. The second record contained a statement by Dr. Bastuba that his "gut feeling [was] that the back pain may have been associated with the cervical injury and changing in his sleeping positions and day-to-day activities."
In his deposition, Dr. Finkenberg told Davis that "if [the low back pain] was documented initially after the trauma and just was not treated initially because it wasn't the biggest problem, then I think it's reasonable to pursue its care and try to determine if something can be done."
The Board held a second hearing on November 15, 2006, to consider these two pieces of evidence. The hearing consisted of argument by the parties about the relevance of these two documents and the weight to be given them. Kiewit also discussed the supplemental opinion it obtained from its EIME physician that the two documents did not link Davis's low back complaints to the work injury.
In its decision on remand, the Board found "that the medical records of Drs. White and/or Bastuba would not have affected [the] ultimate conclusion" in its earlier decision about the compensability of the claim. It found "the April 20, 1999 billing record to be an innocuous, anonymous reference to a `lumbar' notation, unsubstantiated by the underlying narrative from Dr. White." It also found that Dr. Bastuba's report "reference[d] flank pain, for which the employee received appropriate antibiotics." It relied on Dr. Peterson's opinion and concluded that "consideration of Drs. White or Bastuba's pre-October, 2000 reports would have no impact" on the decision that Davis's low back pain was not work related.
A little less than a month after the Board's decision, Davis filed a request with the superior court to clarify who had jurisdiction over his appeal — the superior court or the Alaska Workers' Compensation Appeals Commission. The superior court decided that it had jurisdiction, and Davis filed a second notice of appeal.
The superior court affirmed the Board's decision. In a thorough and detailed order, the superior court set out the three-step presumption analysis and detailed an appellate court's role in reviewing Board decisions. The court discussed the Board's 2003 decision as well as the 2006 decision and decided that the Board's findings were supported by substantial evidence in the record.
Davis appeals.
III. DISCUSSION
A. Standard Of Review
"In a workers' compensation appeal from the superior court, we directly review the Board's decision." "We review factual findings to see if they are supported by substantial evidence. Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" When we review a Board decision, we do not "`reweigh the evidence or choose between competing inferences,' but simply determine whether such evidence exists." Whether the quantum of evidence is substantial is a legal question that we review independently. B. Substantial Evidence In The Record Supports The Board's Decisions.
Dougan v. Aurora Elec., Inc., 50 P.3d 789, 793 (Alaska 2002).
DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000) (citing Grove v. Alaska Constr. Erectors, 948 P.2d 454, 456 (Alaska 1997)).
Steffey v. Municipality of Anchorage, 1 P.3d 685, 689 (Alaska 2000) (quoting Thompson v. United Parcel Serv., 975 P.2d 684, 688 (Alaska 1999)).
Tinker v. Veco, Inc., 913 P.2d 488, 492 (Alaska 1996).
Davis challenges the Board's decision that his low back complaints were not work related, alleging that the Board made a "mistake in fact." He argues that his low back condition was latent, only becoming symptomatic after the accident and surgery, and that he complained about low back pain shortly after the accident. He concludes that the onset of pain must have been related to the accident or the neck surgery. Kiewit responds that substantial evidence in the record supports the Board's decision.
In its briefing, Kiewit asserted that this court was limited to consideration of the Board's 2006 decision, arguing that we "should not consider any briefing or arguments related to any issue other than the Board's November 24, 2006 decision on the limited remand." At oral argument before us, Kiewit conceded that it was appropriate for us to review both Board decisions because the superior court decision remanding the case to the Board was not a final decision that Davis could have appealed. See Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1253-54 (Alaska 2007) (citing City Borough of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979)) (noting that when the superior court remands a case to the Board, the decision is not final).
"The Alaska Workers' Compensation Act creates a presumption that an employee's claims are compensable. Applying this presumption involves a three-step analysis." The employee must first establish a link between his injury and his employment. In order to attach the presumption of compensability, the employee must provide "some evidence" that the disability is work-related. For purposes of attaching the presumption of compensability, the Board does not weigh the evidence, but looks at it in isolation. Medical evidence may be needed to attach the presumption of compensability in a complex medical case.
Bradbury v. Chugach Elec. Ass'n, 71 P.3d 901, 905 (Alaska 2003) (quoting Temple v. Denali Princess Lodge, 21 P.3d 813, 816 (Alaska 2001)).
Id. (citing Temple, 21 P.3d at 816).
Tolbert v. Alascom, Inc., 973 P.2d 603, 610 (Alaska 1999) (citing Gillispie v. B B Foodland, 881 P.2d 1106, 1109 (Alaska 1994)).
Id. (citing Veco, 693 P.2d at 869-70).
Burgess Constr. Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981).
The Board decided that Davis's claim was a complex medical case and that he needed medical testimony to attach the presumption. The Board's 2003 hearing dealt with Davis's lumbar spinal problems. Davis advanced two alternative theories of compensability before the Board: (1) that the low back pain was caused by the accident itself and did not become prominent until after resolution of his neck pain; or (2) that the neck surgery and its aftercare triggered the low back problem. To assess these theories, the Board looked only at Dr. Voke's opinion to see if Davis had attached the presumption of compensability. The Board found that Davis had not attached the presumption; it decided that Dr. Voke changed his opinion about causation and deferred to Dr. Finkenberg's opinion. The Board also did an alternative analysis based on the assumption that the presumption had attached, and found that Davis had not established the compensability of his claim. Davis does not clearly challenge the Board's conclusion that he did not attach the presumption, but we conclude that any possible error in this finding is harmless because of the Board's alternative analysis.
In his written workers' compensation claim, Davis listed a groin injury as well as the low back injury. A later prehearing conference summary listed only the low back injury as an issue, and Davis agreed with the Board chair at the beginning of the hearing that the issues at the hearing were related to his low back. In his prayer for relief here, he asks for continuing medical care related to his alleged groin injury. Davis waived the issue of his eligibility for medical care for his groin pain independent of his low back claim because he did not develop an argument related to this. See A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995). For the same reason, Davis waived independent consideration of retraining benefits and reimbursement for Dr. Voke's fees.
Carlson v. Doyon Universal-Ogden Servs., 995 P.2d 224, 228 (Alaska 2000).
Once the presumption of compensability attaches, an employer may rebut it by presenting substantial evidence that: (1) provides an alternative explanation that excludes work-related factors as a substantial cause of the disability; or (2) directly eliminates any reasonable possibility that employment was a factor in causing the disability. At the second stage, the Board looks at the evidence in isolation and does not weigh it. Here, the Board found that Kiewit had rebutted the presumption through "the opinion and testimony of Drs. Finkenberg, Dittrich, and Peterson."
Bradbury v. Chugach Elec. Ass'n, 71 P.3d 901, 906 (Alaska 2003).
Stephens v. ITT/Felec Servs., 915 P.2d 620, 625 (Alaska 1996) (citing Veco, Inc. v. Wolfer, 693 P.2d 865, 869-70 (Alaska 1985)).
Davis argues that the superior court should have "allow[ed] a full discussion of the evidence, including all inaccurate evidence used to rebut the Employee's presumption of compensability." He contends that Kiewit provided or solicited inaccurate or fraudulent testimony, a contention apparently related to Kiewit's assertion that the injury did not cause Davis to miss work. He also asserts that the early medical records did not accurately document his complaints because representatives from Kiewit accompanied him to doctor visits.
We interpret Davis's argument as contending that the opinions of Dr. Finkenberg, Dr. Dittrich, and Dr. Peterson were not substantial evidence sufficient to rebut the presumption because their opinions relied in part on what Davis considered erroneous information. As the superior court noted, the doctors' opinions that the industrial accident did not cause Davis's low back pain were based in part on the lack of documented low back complaints close to the time of the accident. The superior court's remand to the Board allowed the Board to look more closely at the two documents Davis offered to substantiate his claim that he had in fact discussed low back pain with his doctors before the neck surgery. The hearing on remand also provided Davis with an opportunity to persuade the Board that it should accept the theory that his back pain predated his neck surgery.
Even when expert opinions rely on disputed facts, they can still be substantial evidence to rebut the presumption of compensability. In Stephens v. ITT/Felec Services, Inc., we held that physicians' opinions rebutted the presumption when "[t]he physicians based their opinions on a state of facts, which, although disputed, could be permissibly resolved in favor of the employer." This principle applies in Davis's case. A dispute developed about whether Davis reported low back pain to healthcare providers close to the time of the accident. With the few exceptions noted above, most of the medical records close to the time of injury discussed neck and shoulder pain and headaches rather than back pain. Although Davis contested the accuracy of the records, the Board could permissibly resolve this dispute in favor of Kiewit and find that Davis had not reported low back pain close to the time of the accident.
Id.
We agree with the superior court that substantial evidence supported the Board's finding that Kiewit rebutted the presumption of compensability. An employer may rebut the presumption by presenting the opinion of a qualified expert who testifies that in his or her opinion, the claimant's work was probably not a substantial cause of the disability. In this case, Dr. Finkenberg testified that in his opinion the lower back pain was probably not caused by the surgery or by the initial accident. Dr. Peterson expressed the same opinion. These opinions were substantial evidence that rebutted the presumption of compensability.
Bradbury, 71 P.3d at 906 (quoting Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992)).
If an employer rebuts the presumption, the burden shifts to the employee to prove his claim by a preponderance of the evidence. At the third stage, the Board assigns weight to the evidence. In this case, the Board found that Davis had not proven his claim by a preponderance of the evidence. It gave little weight to Dr. Voke's opinion that the low back condition could be work related because Dr. Voke agreed it would be reasonable to defer that issue to Dr. Finkenberg, who said that it was not likely that the low back condition was linked to the accident or the neck surgery.
Id.
AS 23.30.122; Apone v. Fred Meyer, Inc., 226 P.3d 1021, 1028 (Alaska 2010).
Davis argues that inconclusive medical testimony must be resolved in his favor, but he does not identify which medical testimony he thinks the Board should have treated differently. We have held that when there is an inconclusive medical opinion, doubt as to its meaning must be resolved in favor of the claimant. But when there is conflicting and unequivocal medical testimony from different doctors, the Board may give weight to one opinion over another. The opinions on which the Board relied in rejecting Davis's claim were not equivocal. Dr. Peterson denied that there was any relationship between Davis's low back pain and the work-related accident. He also thought the neck surgery did not cause Davis's low back pain. Dr. Finkenberg's opinions were likewise unequivocal. Even though he acknowledged that trauma could accelerate Davis's back condition, he testified that it was not likely that the accident caused the low back pain. The only doctor who thought the low back pain was related to the 1999 accident was Dr. Voke, and the Board gave little weight to his opinion because he largely deferred to Dr. Finkenberg. As an appellate court, we do not reweigh the evidence. The opinions of Dr. Finkenberg and Dr. Peterson are substantial evidence supporting the Board's determination that Davis had not met his burden of proof.
Kessick v. Alyeska Pipeline Serv. Co., 617 P.2d 755, 758 (Alaska 1980). The rule that doubt as to the meaning of testimony must be construed in favor of the claimant generally applies when the Board examines the evidence in isolation, not when it is weighing conflicting testimony. Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 793 n. 48 (Alaska 2007).
Brown v. Patriot Maint., Inc., 99 P.3d 544, 549-50 (Alaska 2004).
Steffey v. Municipality of Anchorage, 1 P.3d 685, 689 (Alaska 2000) (quoting Thompson v. United Parcel Serv., 975 P.2d 684, 688 (Alaska 1999)).
More than once in the course of the proceedings, Davis expressed concern about Kiewit's reference to a note by Dr. James that taking Davis off work would be "creating fraud." Dr. James's use of the word "fraud" was unfortunate. As Kiewit acknowledged before the Board, this statement, which proved to be unfounded, influenced its perception of Davis's claim. But we see no indication that Dr. James's statement influenced the Board in deciding Davis's low back claim. The evidence the Board relied on in deciding that Davis had not proven his claim was taken in part from testimony of physicians who had treated Davis, including Dr. Finkenberg.
We also affirm the Board's decision on remand. The two medical records might have provided some support for the theory that Davis's lumbar complaints were related to the initial injury, but the Board was entitled to give them little weight. It was reasonable for the Board to give more weight to the testimony of the orthopedic doctors, Dr. Finkenberg and Dr. Peterson, than to a statement by a urologist about his "gut feeling." Similarly, the notation on Dr. White's billing record might corroborate Davis's assertion that he discussed lumbar pain with Dr. White, but its evidentiary value was reduced because Davis could not identify who wrote the notation or why it was written. Moreover, Dr. White did not document lumbar complaints in the chart notes from this visit.
AS 23.30.122.
Davis alleges that he tried to tell healthcare providers he saw close to the time of the accident about pain in his lower back. He asserts that the reports were not in the chart notes because the care was provided on-site by Kiewit or because Kiewit's representative, who accompanied him on at least one medical visit, "did all the talking." But nothing in the record shows that anyone from Kiewit prevented Davis from responding to questions posed by his care providers or otherwise interfered with his communications with them, and Dr. White's chart notes did not mention a complaint of low back pain. Also, the May 2, 1999, notes from Kiewit's on-site healthcare provider contain a narrative written by Davis. This narrative does not describe pain in the low back, only back pain coming from the right shoulder. The superior court's remand gave Davis an opportunity to persuade the Board that doctors had documented low back complaints before the surgery. But the Board could reasonably rely on other evidence, including Dr. Peterson's supplemental report, to find again that the low back pain was not compensable. In sum, the Board's findings are supported by substantial evidence in the record.
C. Davis's Other Arguments Lack Merit Or Are Waived.
Davis raises several other issues in his brief. For the reasons outlined here, the claims have either been waived or have no merit.
Davis first argues that AS 23.30.205 supports his claim because one of his preexisting conditions is listed as a "permanent physical impairment" in AS 23.30.205(f). Alaska Statute 23.30.205 governs Second Injury Fund claims, and the definition Davis cites is applicable only to those claims. Because this is not a Second Injury Fund claim, AS 23.30.205 does not apply.
The Second Injury Fund partially reimburses qualifying employers for workers' compensation benefits when certain conditions are met. See VECO Alaska, Inc. v. State, Dep't of Labor, Div. of Workers' Comp., Second Injury Fund, 189 P.3d 983, 987 (Alaska 2008) (describing Second Injury Fund).
AS 23.30.205(a), (f).
Davis asks us to review whether Kiewit "engaged in fraudulent behavior," citing AS 25.30.250(a). But Davis did not ask the Board to make any findings based on this statutory subsection, so it would be improper for us to review it on appeal. In any event, AS 23.30.250(a) contemplates a civil action for damages rather than Board proceedings on a workers' compensation claim. Davis's reference to violations of state workplace regulations by Kiewit is irrelevant to his case because fault is not a consideration in workers' compensation.
Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996).
AS 23.30.250(a), (c).
AS 23.30.045(b). Davis also refers to AS 23.05.190, which deals with enforcement of wage claims. This statute has no relevance to Board proceedings in this case.
Davis's reliance on Fishback Moore of Alaska, Inc. v. Lynn is likewise misplaced. Fishback Moore interpreted AS 23.30.130(a), which permits the Board to review a claim that has already been decided if there has been a mistake in a determination of fact. The only decision the Board issued in Davis's case prior to the 2003 decision was related to Davis's reemployment benefits. Davis did not allege that the Board made a mistake of fact when it decided his reemployment benefits claim. The statutory subsection that we construed in Fishback Moore is thus irrelevant to Davis's case.
453 P.2d 478 (Alaska 1969).
Id. at 484-85.
IV. CONCLUSION
Because substantial evidence in the record supports the Board's findings, we AFFIRM the Board's decisions.