John E. ADAMSON, Petitioner and Cross-Respondent, v. MUNICIPALITY OF ANCHORAGE and Novapro Risk Solutions, Respondents and Cross-Petitioners, and State of Alaska, Intervenor.
Nos. S-15006, S-15025
Supreme Court of Alaska
Aug. 29, 2014.
For these reasons, we conclude that the executive director correctly determined that the legal predicate to discretionary dismissal under
The possibility that Grundberg‘s 2007 claims might now be time-barred is legally irrelevant to the question whether the 2012 complaint is “based on the same facts” as the 2007 complaint. And in any event, under our precedent, Grundberg‘s 2007 claims of age, sex, and race discrimination would likely not be time-barred because the limitations clock was equitably tolled while those claims were before the Commission.10 We also note that
V. CONCLUSION
We agree with the Commission‘s legal determination that Grundberg‘s 2012 complaint in superior court was “based on the same facts” as her 2007 complaint to the Commission within the meaning of
Janell M. Hafner, Assistant Attorney General, and Michael C. Geraghty, Attorney General, Juneau, for Intervenor/Cross-Respondent.
Before: FABE, Chief Justice, WINFREE, STOWERS, MAASSEN, and BOLGER, Justices.
OPINION
WINFREE, Justice.
I. INTRODUCTION
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
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.5 The Municipality raised two other defenses related to the examination requirement, and it also relied on Dr. Allems‘s opinion that Adamson‘s prostate cancer was not connected to his work as a firefighter.
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
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
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.9 We apply our independent judgment to questions of law that do not involve agency expertise.10 Interpretation of a statute is a question of law to which we apply our independent judgment; we interpret the statute according to reason, practicality, and common sense, considering the meaning of the statute‘s language, its legislative history, and its purpose.11 We do not mechanically apply the plain meaning rule, using instead a sliding scale approach to statutory interpretation, in which “the plainer the statutory language is, the more convincing the evidence of contrary legislative purpose or intent must be.”12
Whether a statute requires substantial or strict compliance is a legal question,13 but whether someone has substantially complied with a legal requirement is a mixed question of fact and law.14 We independently review the Board‘s factual findings and the record when we review the Commission‘s conclusion that substantial evidence supports the Board‘s decision.15 To the extent there is a question about the exclusion of evidence, we generally use an abuse of discretion standard of review,16 but when the evidentiary dispute rests on a question of statutory interpretation, we apply our independent judgment in interpreting the statute.17
IV. DISCUSSION
A. We Do Not Decide Whether The Statute Violates Equal Protection.
The Municipality raised the question of
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
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.18 Both agencies decided that the statute was procedural and directory; consequently they reasoned that substantial compliance was the applicable standard for cases involving
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
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.”21 Requiring Adamson to comply strictly with statutory and regulatory requirements that did not exist when he was hired or when he was exposed to toxins earlier in his career as a firefighter, as the Municipality advocates, would circumvent the legislature‘s intent that Adamson‘s prior exposure could trigger the presumption.22 Thus, in order to give effect to the legislature‘s intent that prior exposures are covered by the presumption and to avoid an unrealistic result, we hold that Adamson could attach the presumption through substantial compliance.23
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.24 And in Nenana City School District v. Coghill we looked to the substantial compliance doctrine in deciding whether a teacher was in “substantial noncompliance” with legal requirements such that she was ineligible for tenure when her license lapsed during the school year.25 The case upon which the Municipality relies, Pan Alaska Trucking, Inc. v. Crouch, examined whether a statute was procedural or substantive, but it did not mention substantial or strict compliance, considering instead whether the statute had retroactive application.26
In the context of
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
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.34 We agree with the Commission that the purpose of the medical examination requirement is to establish with a reasonable degree of certainty that a firefighter does not have a covered condition before his exposure to workplace toxins.35 This purpose is evident from the legislature‘s delegating to the Board the task of defining “the type and extent of the medical examination that is needed to eliminate evidence of the disease.”36 We do not consider relevant to our analysis the Municipality‘s purpose in giving the medical examinations; they fulfill the requirement as long as they screened Adamson for prostate cancer and showed he did not have the disease at the time of hire or for the requisite time period after he was employed as a firefighter.
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.37 Medical records from his annual employment physicals beginning in the 1990s show that he had a PSA test at many examinations; the records reflect that the PSA test results at seven of his annual medical exams were normal before he was diagnosed with prostate cancer in 2008. Because of Adamson‘s extensive record of employment-related medical examinations showing no indication of prostate cancer, we affirm the Commission‘s decision that Adamson produced sufficient evidence that he had substantially complied with the statutory requirements for medical examinations.38
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.”39
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.”40 The Municipality vigorously contested this element at the hearing, contending that there is no known carcinogen for prostate cancer—that is, that no causal relationship has ever been established between a carcinogen and prostate cancer—and that as a result Adamson could not establish this element. On appeal, the Municipality insists that the statute requires the firefighter to show exposure to a known carcinogen for the specific cancer diagnosed and, because Dr. Allems testified there is no known carcinogen for prostate cancer, that Adamson is unable to make a connection between his work and his cancer. Adamson counters that he fulfilled the statutory requirements because causation (as the Municipality used the term) imposed a higher standard than “association,” the standard set out in the statute. He disagrees with the Municipality‘s interpretation of the statute, arguing in essence that the statute has two steps and that he completed both because he presented evidence from the NTP and the IARC that (1) substances to which he was exposed are known carcinogens and (2) those carcinogens are associated with prostate 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, its legislative history, and its purpose.41 When we interpret a statute, we presume that no words or provisions are superfluous and that the legislature intended “every word, sentence, or provision of a statute to have some purpose, force, and effect.”42 Alaska Statute
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.”43 Because there is no dispute that Adamson was exposed to a “known carcinogen,” we must construe the phrase “is associated with,” focusing on “associated.” There
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.”44 To be included on the “known to be human carcinogens” list there must be evidence “indicat[ing] a causal relationship between exposure to the agent, substance, or mixture, and human cancer.”45 Each substance on the list of known carcinogens has a substance profile, which “contain[s] the listing status, summarize[s] the scientific information that supports the recommendation, and provide[s] information on use, exposure, and production.”46 As Dr. Allems testified at the hearing, the NTP does not list target organs in conjunction with substances on its list of known carcinogens.
The IARC has four classifications of carcinogenicity, with one classification having two subgroups; these classifications range from “carcinogenic to humans,” when a caus-
al relationship has been established between the agent and cancer, to “probably not carcinogenic to humans.”47 Substances are classified as “probably carcinogenic to humans“—the level below “carcinogenic to humans“—if there is “limited evidence” of carcinogenicity;48 in humans, “limited evidence of carcinogenicity” means that “[a] positive association has been observed between exposure to the agent and cancer for which a causal interpretation is considered ... credible, but chance, bias, or confounding could not be ruled out with reasonable confidence.”49 Unlike the NTP, the IARC does not compile a list of “known carcinogens.” Instead, the IARC publishes monographs about both substances and occupations reporting the data the agency has reviewed in evaluating the subject of the monograph;50 it also has lists summarizing data in its monographs, including a list of classifications by cancer sites with sufficient or limited evidence of carcinogenicity in humans.51
In his hearing testimony, Dr. Allems referred to a 2006 epidemiology textbook with tables summarizing information from the IARC.52 The textbook listed carcinogens from two IARC classifications: “Group 1,” which the textbook considered definite human carcinogens and “Group 2A,” which the
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].”54 A link does not require causation; two ideas or properties can be linked without one causing the other. We therefore hold that the statute does not require a firefighter to show exposure to a carcinogen that has been shown to cause a specific cancer. Instead, the statute sets up a two-step process, in which the firefighter must first show exposure to a known carcinogen as defined by the NTP or IARC.55 The firefighter must then provide some evidence linking the carcinogen to the cancer,56 but does not have to show that the IARC or the NTP has determined that the carcinogen is a “known carcinogen” for the cancer.
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
Relying on cases about attaching the presumption under
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
In sum, we hold that Adamson was required to (and in fact did) substantially comply with the requirements for medical examinations in
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
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
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.68 But in interpreting statutes, we can look at the type of object on a list to see whether the legislature intended to describe a class that includes those things on the list.69 The items on the statutory list are all personal to the claimant, including habits and other possible sources of toxic exposures; we therefore conclude that the statutory language indicates that rebuttal evidence must be personal to the claimant, not evidence attempting to undermine the legislature‘s determination that the enumerated diseases are occupational diseases of firefighters.
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 con-
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,71 and we similarly reject the Municipality‘s attempt to do so here.
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.”72 The Maryland court upheld the exclusion of expert testimony when the employer‘s expert held the opinion “that there was utterly no correlation between job stress and heart disease.”73 Under a slightly different statutory scheme, the California Court of Appeal rejected an employer‘s attempt to rebut a statutory presumption that a police officer‘s kidney cancer was work related by introducing evidence “that no studies exist showing a positive link between the exposure and the particular form of cancer.”74
We agree with these cases and hold that the evidence used to rebut the legislatively created presumption in
V. CONCLUSION
For the foregoing reasons, we AFFIRM the Commission‘s decision that Adamson attached the presumption of compensability in