Accordingly we hold that the Board erred in dismissing Forest's entire compensation claim. Under our interpretation of the section, the Board should have determined Forest's entitlement to compensation attributable to the initial injury apart from any aggravation caused by Dr. Joosse's malpractice and then dismissed that part of Forest's compensation claim attributable to the physician's negligence. Upon remand to the Board, Forest will carry the burden of proving that the malpractice claim lacked merit. In other words, Forest bears the burden of segregating his initial injury from any possible aggravation caused by Dr. Joosse's negligence. However, I do not believe that the claimant should be allowed to escape application of the forfeiture clause to an over lapping claim on the grounds that the third-party defendant was not negligent.
Forest can win the case on remand in two ways under the majority opinion.
He may establish that Dr. Joosse's treatment did not aggravate his injuries, or he may establish that Dr. Joosse's treatment was not negligent, although it may have aggravated his injuries. Thus, I think the majority has gone too far by allowing Forest to escape liability on the ground that Dr. Joosse's treatment was not negligent. I would limit the inquiry on remand solely to the first issue noted above, the extent to which Dr. Joosse's treatment aggravated Forest's condition. Because the facts of this case are largely undisputed, the question before us is whether the Board correctly applied the law to these facts. Additionally, we note that this case involves a close interpretation of AS 23.30.015, a legal question squarely within the province of this court.