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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. AT&T Alascom v. Orchitt (07/06/2007) sp-6139

AT&T Alascom v. Orchitt (07/06/2007) sp-6139, 161 P3d 1232

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


NORTH AMERICA, INC., ) Supreme Court No. S-12058
Appellants, ) Superior Court No. 3AN-03-8276 CI
v. ) O P I N I O N
JOHN ORCHITT; and THE STATE ) No. 6139 - July 6, 2007
Appellees. )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third    Judicial   District,
          Anchorage, Philip R. Volland, Judge.

          Appearances:  Trena L. Heikes, Anchorage, for
          Appellants.  Steven J. Priddle, Law Office of
          Steven  J.  Priddle, Anchorage, for  Appellee
          John  Orchitt.  Larry A. McKinstry, Assistant
          Attorney  General, Anchorage,  and  David  W.
          M rquez,   Attorney  General,   Juneau,   for
          Appellee Alaska Workers Compensation Board.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          EASTAUGH, Justice.

          John  Orchitt was exposed to radio frequency  radiation
in  an  accident  while  he worked for  AT&T  Alascom.   After  a
contested hearing, the Alaska Workers Compensation Board  awarded
him  temporary  total  disability  and  medical  benefits.   AT&T
unsuccessfully  appealed  to the superior  court,  alleging  that
procedural irregularities deprived it of due process and that the
boards   decision  was  not  supported  by  competent  scientific
evidence.   Because  substantial  evidence  supports  the  boards
findings  and  because the boards procedural  decisions  did  not
deprive  AT&T  of  due  process, we affirm  the  superior  courts
judgment that affirmed the boards ruling.
          John  Orchitt applied for workers compensation benefits
on  September 21, 1999, claiming he had suffered head, brain, and
upper  body  injuries  as  a  result  of  overexposure  to  radio
frequency   radiation  on  November  16,  1998.    AT&T   Alascom
controverted his claim on October 14, 1999.  We derive the  facts
in  this  case  from the workers compensation  file  and  hearing
          Orchitt  began working for AT&T Alascom in 1991,  after
serving in the Air Force for more than twenty years.1  He  worked
primarily as a telecommunications equipment installer technician.
          On  November  16, 1998, Orchitt and his  coworker,  Tim
Sorenson,  were  installing  a  new  computer-operated  switching
system  in  the Eagle River Earth Station.  They had  to  replumb
sections  of waveguide as part of the installation process.2   To
prevent them from being exposed to radio frequency radiation, the
amplifier associated with the waveguide they were working on  was
supposed to be turned off.
          After  a  technician from the Eagle River Earth Station
turned  off  an  amplifier in accordance with the  specifications
provided,  Orchitt separated two segments of the  waveguide.   He
estimated that his head was from nine to fifteen inches away from
the waveguides point of separation.  While Orchitt was working on
the  waveguide, Sorenson walked around the room with a meter  and
probe  to  detect  any  radio  frequency  radiation.   The  meter
Sorenson  used  had three scales.  A full-scale  reading  on  the
highest  scale  could indicate the presence of  three  times  the
American National Standards Institute (ANSI) limit for whole body
exposure.  Sorenson calibrated the meter outside the room.  After
he  reentered the room, the meter pegged, indicating  that  there
was  radio  frequency radiation in the room.   Pegged  means  the
meter  registered  at  its highest level.  Sorenson  changed  the
scale  while he was in the room, but the meter continued to  peg.
Realizing there was a problem, Orchitt clamped the two pieces  of
the  waveguide  together to stop the radiation from  leaking  any
further.  Orchitt and Sorenson then discovered that the amplifier
connected  to the waveguide had not been turned off  because  the
engineer  had  misidentified which amplifier was associated  with
the  waveguide  they  were  working on.   Orchitt  contacted  the
engineer  and tried to contact his supervisor to tell them  about
the  accident;  his supervisor was not in, so  he  contacted  the
manager  instead.   The  radio frequency  radiation  Orchitt  was
exposed  to  had  a  frequency of six gigahertz;3  the  amplifier
transmitting radio frequency radiation through the waveguide  was
          operating at approximately ninety watts.  Orchitt estimated that
he  was  exposed to radio frequency radiation for  three  to  six
          Sorenson  testified that Orchitt said he  felt  a  heat
flash.  Sorenson did not observe any redness on Orchitts face  at
that  time.   Orchitt filed a report of injury  on  December  14,
indicating  that his head and eyes had been exposed to radiation.
He  continued  to work as an installer for AT&T for  about  three
months following the accident; some of his work was overtime.
          Radio  frequency  radiation is non-ionizing  radiation,
unlike  the radiation from x-rays.  The primary biological effect
of  radio frequency radiation is heating.  Ionizing radiation, in
contrast,  has sufficient energy to break molecular bonds  within
the  body.   Radio frequency radiation encompasses  a  number  of
frequencies,  including  the frequencies  for  television,  radio
broadcasting,   and  telecommunications.   The   term   microwave
radiation refers to a region within the radio frequency radiation
band.  The frequency of microwave radiation is usually above  one
gigahertz,   or   one  billion  cycles  per  second.    Different
frequencies of radio frequency radiation have differing abilities
to  penetrate tissue.  Frequency and wavelength are  related,  so
that  longer  waves  have lower frequencies.  Longer  waves  have
greater   penetration.    Six  gigahertz   waves   penetrate   to
approximately  eight  millimeters.  When  the  waves  reach  this
depth, they have lost approximately eighty-five percent of  their
          Safety   standards  for  exposure  to  radio  frequency
radiation  vary according to the frequency involved.   There  are
two ways to calculate exposure to radio frequency radiation.  One
way  is to calculate the actual exposure level in milliwatts  per
square  centimeter; the second way measures tissue absorption  of
radio  frequency  radiation in watts per kilogram.   The  Federal
Communications  Commission  (FCC)  has  set  standards  both  for
general  public  exposure  and for  occupational  exposure.   Two
experts who testified in Orchitts case and the board used the FCC
occupational standard for actual exposure to evaluate whether  he
was   overexposed   to  radio  frequency  radiation.    The   FCC
occupational  standard for actual exposure at  six  gigahertz  is
five  milliwatts per square centimeter over a six-minute interval
for whole body exposure.4
          Orchitts first medical visit after the exposure was  an
appointment with his family clinic on November 30, 1998.  Orchitt
was  concerned about headache and eye pain after the exposure but
thought  he  had a sinus infection.  The doctor he  saw  referred
Orchitt  to an optometrist for follow up.  The optometrist  found
nothing wrong but referred Orchitt to a neurologist to rule out a
stroke.  The neurologist ordered an MRI; it showed tiny areas  of
hyperintensity  in  the  frontal  lobes,  which  the  neurologist
concluded  had  doubtful clinical significance.  The  neurologist
prescribed medication for Orchitts headaches.  Dr. David Swanson,
an  ophthalmologist, evaluated Orchitts eyes in February 1999 and
found  no abnormality except decreased tear production.   Orchitt
went  to  Dr. Stanley Smith, his family physician, in March  1999
with  complaints about mental slowing.  Dr. Smith  was  concerned
          that Orchitt had suffered a stroke or transient ischemic attack.5
          In  March 1999 Orchitts neurologist referred him to Dr.
Marvin  Ziskin, a professor of radiology and medical  physics  at
Temple  University in Philadelphia.  Dr. Ziskin did  not  examine
Orchitt  in person, but, using information Orchitt provided  him,
made  calculations  related  to the  amount  of  radio  frequency
radiation  for  Orchitts exposure.  Based on those  calculations,
Dr.  Ziskin  concluded  that Orchitt  was  overexposed  to  radio
frequency radiation.
          Dr. Ziskins conclusions differed from those of Kimberly
Kantner,  AT&Ts radiation safety officer.  Following  the  injury
report, Kantner had calculated Orchitts probable exposure  level,
using  a  mathematical model.  Based on these  calculations,  she
estimated a range of radiation exposure levels, with the high end
being  slightly  in excess of the FCC maximum permissible  limit.
But  because of the physical symptoms he described, she concluded
that Orchitt had not been overexposed.
          Orchitt  consulted Dr. Paul Craig, a neuropsychologist,
in August 1999.  Dr. Craigs evaluation showed a relatively normal
neurocognitive   profile,  although  he   noted   a   very   mild
neurocognitive  disorder and a significant level  of  depression.
Dr.  Craigs  report  stated that he did not  have  the  necessary
expertise  to  determine  whether  there  was  any  link  between
Orchitts symptoms and his radio frequency radiation exposure.
          Orchitt began treatment at the Brain Injury Association
of  Alaska in October 1999.  His main care provider there was Dr.
Debra  Russell;  she  has a Ph.D. in psychology,  but  is  not  a
licensed  clinical  psychologist.   Dr.  Russell  conducted  some
testing  on  Orchitt and issued an opinion letter to  the  claims
adjuster,  stating that Orchitt was suffering  from  a  cognitive
disorder  as a result of his radio frequency radiation  exposure.
She  provided  Orchitt  with  ongoing rehabilitation  therapy  to
address  his  continuing complaints of mental  slowing  and  mood
          Dr. Russell also referred Orchitt to Dr. Daniel Amen, a
psychiatrist,  for  a single photon emission computed  tomography
(SPECT)  scan.   A SPECT scan measures blood flow in  the  brain,
looking  at  functional, rather than structural,  changes.6   Dr.
Amen performed the SPECT scan in November 2000 and concluded that
Orchitt  had some decreased brain activity as well as depression.
Dr.  Amen attributed the neurological impairments he observed  to
radio  frequency radiation exposure based on the history  Orchitt
gave and a discussion Dr. Amen had with Dr. Russell.
          AT&T  retained a panel of doctors to evaluate  Orchitt.
Dr.   Patricia   Sparks,  a  specialist   in   occupational   and
environmental medicine and internal medicine, examined Orchitt in
September 2000.  Dr. Sparks concluded that while Orchitt may have
had some warming of his skin due to the radio frequency radiation
exposure, the symptoms he described were not consistent with  the
known health effects of radio frequency radiation exposure.   She
believed that Orchitt was suffering from depression that was  not
directly related to the radio frequency radiation exposure.
          Dr.  David Coppel, a Washington neuropsychologist, also
evaluated Orchitt for AT&T in September 2000.  He did some of the
          same testing Dr. Craig had done in 1999.  The testing showed some
impairments in visual processing, but Dr. Coppel did not  believe
that  they  could  be  related to the radio  frequency  radiation
exposure.   He  instead  believed that depression  was  the  most
likely  cause of Orchitts difficulties, but he did not  offer  an
opinion as to the origin of the depression.
          Dr. Douglas Robinson, a Seattle psychiatrist, conducted
a  psychiatric evaluation of Orchitt for AT&T, also in  September
2000.   He concluded that the late onset of symptoms reported  by
Orchitt indicated that the radio frequency radiation exposure was
an  unlikely cause of Orchitts difficulties.  His opinion  stated
that  the  most  likely explanation for Orchitts  complaints  was
depression and somatization due to stress.  He identified several
stressors that could have contributed to the depression.
          Because  of  the  complex  medical  issues,  the  board
ordered  a second independent medical evaluation (SIME) in  April
2000.  The board selected Dr. Charles Sutton, a neurosurgeon,  to
conduct  the evaluation.  Dr. Sutton spoke with Orchitt by  phone
and was provided extensive medical records.  Dr. Sutton asked the
board  to  hire an engineer as a consultant to give him a  better
idea  of  how  much  radio frequency radiation Orchitt  had  been
exposed to.
          At Dr. Suttons request, the board hired Dr. Arthur Guy,
a  professor emeritus of electrical engineering at the University
of  Washington.  Dr. Guy had done extensive work in the  area  of
the   biological  effects  of  radio  frequency  radiation.    He
conducted  three computer models of the accident.  The first  was
based  on information received from AT&T.  After the report based
on  the  first  model concluded that there was  no  overexposure,
Orchitt wrote to Dr. Guy, describing the incident.  Dr. Guy  then
ran  a second model, using the information that Orchitt provided.
This  scenario also showed that Orchitt had not been  overexposed
to  radio frequency radiation.  Orchitt again contacted  Dr.  Guy
and supplied other information.  Dr. Guy then made a third set of
calculations.  Because there was conflicting evidence  about  the
placement  of possible reflectors, Dr. Guy placed the  reflectors
in what he considered to be the worst possible placement in terms
of  radiation exposure.  The third scenario produced an  exposure
that  was  approximately nine and a half  percent  over  the  FCC
exposure  limits,  but  not enough to cause  biological  effects.
After  receiving  Dr.  Guys reports, Dr.  Sutton  concluded  that
Orchitt  had  not  suffered  any  injury  related  to  the  radio
frequency radiation exposure beyond dermal heating, which Orchitt
experienced as a sensation akin to sunburn.
          Orchitts board hearing was scheduled to begin on  April
8,  2003.  The parties attended a pre-hearing conference on March
10,  2003.   Orchitt stated at that conference that he  would  be
submitting two new expert reports, one from Dr. Russell, and  one
from   a   newly   identified   expert,   Dr.   James   May,    a
neuropsychologist.   Dr.  Mays  report  concluded  that   Orchitt
suffered from organic personality syndrome and mood disorder  due
to  general medical conditions and that these conditions  related
to  his exposure to radio frequency radiation.  In spite of AT&Ts
objection,  the board refused to exclude the reports because  the
board  reasoned  that  they  were  filed  within  the  twenty-day
deadline for filing evidence.7
          A  short  time  later, AT&T requested a continuance  so
that it could get a follow-up employers medical examination (EME)
of  Orchitt  in response to the new expert reports.   AT&T  later
withdrew  that request with the understanding that Orchitt  would
attend  an  EME before the hearing.  AT&T scheduled the  EME  for
April  1-3,  2003 in Seattle; however, in a March 19 letter  from
his  attorney,  Orchitt indicated that he would not  be  able  to
attend  the EME as scheduled.  AT&T requested a board hearing  to
address  several  issues, including the  EME  and  AT&Ts  renewed
request for a continuance.
          At  a  board hearing on April 1, Orchitt said he  would
submit  that  day  another  new expert report  from  another  new
expert,  Dr.  Jeff  Keene,  a neuro-ophthalmologist.   Dr.  Keene
diagnosed   several  vision  disorders  in   Orchitt   and   made
recommendations for treatment.  AT&T told the board that  it  had
not  yet  received all the information it had requested from  Dr.
May   and  that  Dr.  May  had  not  appeared  at  his  scheduled
deposition.   AT&T  asked  the board to either  strike  Dr.  Mays
report  or, alternatively, grant a continuance to allow  AT&T  to
(1) demand that Dr. May release his report and (2) compel Orchitt
to  attend  a follow-up EME.  The board denied AT&Ts  request  to
strike Dr. Mays report, decided that it would be unreasonable  to
require Orchitt to attend a follow-up EME so close to the April 8
main hearing, and reserved ruling on AT&Ts continuance request.
          At  the April 8 hearing AT&T renewed its request for  a
continuance  for  the purpose of developing expert  testimony  to
rebut  what it called Dr. Mays alleged report.  The board  denied
the  request  but  told AT&Ts attorney that she could  renew  the
request or make objections the following day.
          At  the time of the hearing Dr. Keene was out of  state
and unavailable to testify.  The board admitted Dr. Keenes report
and  said  it would hold the record open for rebuttal  or  cross-
examination.   Although the board had admitted  Dr.  Mays  report
into  evidence, and although Dr. May was available,  Orchitt  did
not  present  him as a witness.  AT&T objected to a board  ruling
that if AT&T wanted to cross-examine Dr. May, it would have to do
so during the time allotted for its case-in-chief.  AT&Ts counsel
said  that she wanted to think about whether she wanted  to  take
the  time from her case-in-chief to cross-examine Dr. May.   AT&T
never thereafter renewed its request to cross-examine Dr. May.
          At  the  end of the hearing AT&T objected to the denial
of  its  continuance request and also stated that it would  waive
cross-examination of Drs. May and Keene.  The  board  chair  told
AT&T that the board would not leave the record open for a follow-
up  EME and that the board was closing the evidentiary record  at
that time.  AT&T did not object to closing the record.
          The  boards post-hearing decision and order found  that
Orchitt  had been exposed to excessive amounts of radio frequency
radiation.   It  found that the models of Dr.  Guy  and  Kimberly
Kantner did not correspond with the known facts in the case.   In
finding  that  Orchitt had been overexposed,  it  relied  on  the
testimony  of  Orchitt,  Sorenson, and  Dr.  Ziskin.   The  board
          decided that Orchitts mental deficits and depression were the
result  of  the  overexposure.  Besides  testimony  from  medical
experts,  the  board relied on testimony from Orchitts  coworkers
that  Orchitt had a red face following the accident and that  his
mental and cognitive states changed after the accident.  It  also
decided  that  Orchitts predominant cause of disability  was  his
depression  and  awarded  him temporary  total  disability  (TTD)
benefits  through  April  21, 2001, the  date  on  which  Orchitt
applied  for  unemployment benefits and  certified  that  he  was
available   for  work.   One  member  of  the  panel   dissented,
concluding  that  Orchitts exposure caused only  dermal  symptoms
that  readily  healed  and that AT&T had paid  all  benefits  due
          AT&T  appealed  to the superior court, contending  that
the board violated AT&Ts due process rights and that the decision
was  not supported by substantial evidence.  AT&T alleged for the
first time in the superior court that the board chair was biased.
The superior court affirmed the boards decision, finding that the
decision was supported by substantial evidence and that AT&Ts due
process rights had not been violated.  AT&T appeals.
     A.   Standard of Review
          We  directly  review the boards ruling.8   Whether  the
board denied AT&T due process is a question of law that does  not
involve agency expertise; we substitute our judgment and exercise
independent  review of questions of law.9  We review  the  boards
factual  findings  under  the  substantial  evidence  standard.10
Substantial evidence is such evidence as a reasonable mind  might
accept as adequate to support a conclusion.11
     B.   Substantial Evidence Supports the Boards Decision.
          The   Alaska   Workers  Compensation  Act   creates   a
presumption that an employees claims are compensable.12  Applying
this  presumption  involves a three-step analysis.13   First,  to
trigger   the   compensability  presumption  the  employee   must
establish a link between his injury and his employment.14  In this
case,  the  board  found  that Orchitt  had  produced  sufficient
evidence to establish a link between Orchitts employment and  his
disability.   AT&T does not appear to contest this  part  of  the
boards findings.
          Second,  once the employee establishes the  presumption
of  compensability, the employer may rebut the  presumption  with
substantial evidence.15  In Orchitts case, the board  found  that
AT&T  had  rebutted the presumption.  Orchitt does not  challenge
the boards finding that AT&T rebutted the presumption.
          Third,  if  an  employer rebuts  the  presumption,  the
burden  shifts  to  the  employee  to  prove  his  claim   by   a
preponderance  of  the  evidence.16  Here the  board  found  that
Orchitt had provided sufficient evidence to establish his  claim.
AT&T  challenges  the boards conclusion that Orchitt  proved  his
claim  by a preponderance of the evidence, raising several issues
about whether substantial evidence supports the boards decision.
          1.   Overexposure to radio frequency radiation
          AT&T  first claims that the boards finding that Orchitt
was overexposed to radio frequency radiation is not supported  by
          substantial evidence because the board rejected the testimony of
the  boards  engineering expert and AT&Ts  radiation  expert  and
relied  instead on the lay testimony of Orchitt and his coworker,
as well as its own common sense.  AT&T asserts that Dr. Ziskin, a
medical  doctor who also calculated Orchitts exposure,  retracted
his initial opinion that Orchitt had been overexposed.  It argues
that  because  the  issue  of  overexposure  to  radio  frequency
radiation  is  highly  technical, any finding  that  Orchitt  was
overexposed must be supported by expert scientific testimony.  It
alleges  that  only  Kimberly Kantner and Dr.  Guy  had  adequate
expertise to properly evaluate the level of Orchitts exposure.
          In  some  workers  compensation  cases  expert  medical
testimony is necessary to demonstrate a relationship between  the
claimants  employment  and  his  disability.17   Whether   expert
testimony  is  necessary depends on the probative  value  of  the
available  lay  evidence and the complexity of the medical  facts
involved.18  AT&T relies on Commercial Union Cos. v. Smallwood in
arguing that the board erred in its finding of overexposure.  But
the  board  based  its finding that Orchitt  was  overexposed  to
radiation  not  just on lay testimony and common sense;  it  also
relied  on  Dr.  Ziskins expert opinion.  Although AT&T  contends
that  Dr.  Ziskin  retracted his opinion,  the  record  does  not
support  this  assertion.  In his April 16, 1999 letter,  he  did
not,  as  AT&T  argues,  say that it was  unlikely  that  Orchitt
sustained any significant overexposure.  This letter contains  no
reference  at  all to exposure level.  Nor did Dr. Ziskin  change
his  mind in his deposition.  Dr. Ziskin there testified that  he
still  had  concerns  about whether Dr.  Guys  models  adequately
accounted for specular reflection in determining how quickly  the
radiation  would  dissipate once it  left  the  waveguide.   AT&T
points  to  the  following excerpts from Dr.  Ziskins  deposition
testimony to support its argument:
          Q:   Okay.   All right.  You havent done  any
               calculations or analysis yourself,  have
               you, to the degree Dr. Guy has?
          A:   About   what?   I  mean,   I   do   make
               calculations of radiation exposures  and
               so  on  from  antennas and  things  like
          Q:   No.   I  mean in this case, Doctor.   Im
          A:   Oh, in this particular case?
          Q:   Yeah.
          A:   The calculations that I made were very
          Q:   Rough?
          A:     limited.  I took the total power  that
               was coming through the waveguide, and  I
               divided  it by the area to come up  with
               what   was  the  average  power  density
          within  the  waveguide,  which  would  be  at
               the starting point.
          Q:   Right.   And it would be  it would  lose
               power as it moved away, right?
          A:   Well, within the waveguide, for the most
               part, the power will stay the same.
          Q:   Within the waveguide, but once it
          A:   Within  the  waveguide.   But  once   it
               leaves    the   waveguide,    it    gets
               attenuated, yeah.  It depends  upon  the
               nature  of the way it leaves how rapidly
               it attenuates.
          Q:   Okay.
          A:   And most of the modeling was done on the
               idea of the inverse square law; but with
               specular  reflection,  that  would   not
               necessarily be true.
          Q:   And specular reflection you deal with in
               ultrasound, right?
          A:   Thats correct.
          . . . .
          Q:   .  .  .  .  Now,  as to the  differences
               between the sort[] of doctor[] that  you
               are  as  compared to Dr.  Guy,  can  you
               explain the differences for  so that  we
               can  understand the kind of  testimonies
               that  we  can expect that you  would  be
               able to testify to accurately as opposed
               to  the type of testimony Dr. Guy  would
               be able to testify to accurately?
          A:   Well,  there is a great deal of overlap.
               However, Ill  I think he would defer  to
               me when it comes to medical judgment and
               biology.  And unless there was something
               very  specific, I will always  defer  to
               him   when  it  comes  to  the  physical
               engineering side of things.  And I think
               the   same  thing  is  true  with    its
               possible that, because he has done  some
               biological research, that there could be
               something that I would not be correct on
               and  he  would maybe correct me when  it
               comes  to even biology or even medicine,
               but  in  general, he would defer  to  my
               opinion   when  it  comes   to   medical
          We  do  not believe that Dr. Ziskins testimony that  he
would  defer  to  Dr.  Guys  opinions with  respect  to  physical
engineering  unless  there was something very specific  indicates
that he retracted or otherwise abandoned his opinion that Orchitt
was  overexposed.   Dr. Ziskin identified the specific  issue  of
specular reflection as an area of possible disagreement with  Dr.
Guy.   In  his deposition, Dr. Ziskin reiterated his belief  that
Dr. Guys model had not taken specular reflection into account.
          A:   Where  I  have  a  question  is  in  the
               initial  assumptions  of  what  was  the
               exposure  ahead of time, what went  into
               that  model.   And thats why  I  said  I
               wanted  to  look  to see  what  was  the
               incident power density that he felt  was
               started  to expose the head  with.   And
               here  is where I have a little different
               point  of  view.   It  has  to  do  with
               reflections off of the flange.   Because
               I  have  a background in ultrasound  for
               diagnosis  where we look at reflections,
               thats   the  whole  diagnosis  concerned
               with,  Im aware that you can have pretty
               large reflections off of structures that
               are  relatively strong compared to  just
               the  scatter  and the back scatter  that
               you  would have otherwise.  And  see,  I
               havent seen the actual setup.
               But it would be possible that if the two
               flanges   that   had  been    that   the
               waveguide   segments   that   had   been
               separated  had overlapped and there  was
               strong reflections coming off of one  of
               the  flanges, that that reflection could
               actually be quite high and might not  be
               measured in the model  the modeling that
               Dr.  Guy  had  used.  Thats  sort  of  a
               rather  important  point  because   that
               would   establish  what   that   initial
               maximum exposure would be.
          . . . .
          Q:   And  Dr.  Guy did take that into account
               in the third report.  Do you see that?
          A:   Well,  looking  at it, though,  its  not
               clear  to  me whether or not it actually
               addressed    what   I   call    specular
               reflections, the type of reflections  Im
               talking  about.  It looked more  of  the
               defraction type of reflection, which  is
               certainly true, but I dont know  whether
               or  not  the  model actually takes  into
               account the specular reflections.
          . . . .
          A:   The only thing, Im not sure whether that
               model   takes   into  account   specular
               reflections  or not.  I just  dont  know
               for sure.  I would have to ask Dr. Guy.
          Dr.  Ziskins  report and testimony provide  substantial
scientific evidence to support the boards finding.  AT&T does not
argue  that Dr. Ziskin was not qualified to give an opinion about
overexposure.   Moreover,  the  board  was  free  to  credit  the
testimony  of  Dr.  Ziskin  over that of  Dr.  Guy  and  Kimberly
Kantner.   [I]f  the Board is faced with two or more  conflicting
medical  opinions  each of which constitutes substantial evidence
and  elects  to rely upon one opinion rather than the  other,  we
will affirm the Boards decision.19  This is particularly so if the
board  believed  that,  based  on  Orchitts  description  of  the
separation between the segments of the waveguide and his distance
from  the  flange, specular reflection had occurred,  and  if  it
found  that Dr. Ziskins opinion more accurately matched  how  the
accident  happened than Dr. Guys.  We therefore find no merit  in
AT&Ts  contention  that the boards finding was not  supported  by
adequate scientific evidence.
          Furthermore,   in  Beauchamp  v.  Employers   Liability
Assurance Corp., we held that the board could permissibly combine
uncontradicted lay testimony with uncertain medical testimony  to
support  a  conclusion that a workers injury was work  related.20
Here,  the  board did not err in relying on the lay testimony  of
Orchitts  coworkers in combination with the medical  evidence  in
determining that Orchitt had suffered a work-related injury.
          2.   Medical evidence
          AT&T  also argues that the boards findings that Orchitt
suffered  a work-related injury and that Orchitts mental deficits
were  related  to  the  radio frequency radiation  are  based  on
incompetent  medical  evidence.  It contends  that  the  evidence
presented  by  Drs. Russell and Amen does not meet the  standards
articulated  in  State  v.  Coon21 to  test  the  reliability  of
scientific testimony.  Thus, it argues that the SPECT  scan  that
was  the  foundation of Dr. Amens diagnosis of brain damage  does
not  satisfy Coon and that because Dr. Russell was not a licensed
clinical   psychologist,  her  opinions  were  not   sufficiently
reliable to provide a basis for the boards ruling.
          In State v. Coon we set out factors for trial courts to
use   in  determining  whether  expert  scientific  evidence   is
sufficiently reliable to be admitted into evidence.22   AT&T  did
not  object  before  the  board to the admission  of  either  Dr.
Russells  or Dr. Amens reports or testimony on this basis,23  nor
did  it  make  an argument about the applicability  of  the  Coon
standard  to  workers compensation cases in  its  superior  court
appeal.   Because AT&T first raises the issue before us,  it  has
waived the issue.24
          AT&T  did  argue before the board, as it  argues  here,
that  Dr.  Russells testimony should not be credited because  she
was  not licensed as a clinical psychologist.  But AT&T does  not
dispute that Dr. Russell has a doctorate degree in psychology and
is  certified as a rehabilitation specialist.  These  credentials
          provide her with some expertise.  The board did not make a
specific finding about Dr. Russells credibility or the weight  it
accorded  her testimony; nonetheless, the board acted within  its
discretion in rejecting AT&Ts challenge to her expertise  and  in
admitting her testimony.25
          AT&T also argues that the board must have relied on the
opinions of Drs. Russell, May, and Keene in finding that Orchitts
injury  caused his impairments.26  It argues that none  of  these
experts  had  sufficient expertise in radio  frequency  radiation
exposure  to  be able to connect Orchitts injury and his  medical
          AT&Ts  argument overlooks the opinions of  Drs.  Ziskin
and  Smith.   Dr.  Ziskin  stated in his  letter  to  the  claims
adjuster  that neurological problems would be expected to  result
from  Orchitts overexposure to radio frequency radiation.  As  we
have  already  noted,  AT&T is incorrect in  asserting  that  Dr.
Ziskin  withdrew  his  opinion about Orchitts  overexposure.   In
addition, Dr. Smith wrote that he believed that Orchitt sustained
neurocognitive  deficits  related to radio  frequency  radiation.
AT&T  does not argue that the medical opinions of Drs.  Smith  or
Ziskin  are  suspect.  The board has the sole power to  determine
witness  credibility  and assign weight to  medical  testimony.27
When  medical  experts disagree about the cause of  an  employees
injury, we have held that as a general rule it is undeniably  the
province of the Board and not this court to decide who to believe
and  who  to  distrust. 28  Substantial medical evidence  in  the
record supports the boards determination that Orchitt is entitled
to medical and TTD benefits.
     C.   The Board Did Not Deny AT&T Due Process.
          AT&T argues that a series of board procedural decisions
violated its due process rights.  It contends that the violations
occurred  when the board: (1) denied AT&Ts right to cross-examine
the  employees experts; (2) admitted Orchitts last-minute  expert
reports  without giving AT&T an opportunity to rebut the evidence
through  an EME; (3) denied AT&Ts request for a continuance;  and
(4)  violated  its right to an impartial trier of fact  when  the
hearing officer failed to disclose that he was also an officer of
the  AFL-CIO.   Because we conclude that the board  committed  no
procedural  errors  in these regards, it did not  deny  AT&T  due
          1.   Cross-examination
          AT&T  argues that the board denied its right to  cross-
examine  two of Orchitts experts, Drs. May and Keene.  Dr.  Keene
was not available to testify at the hearing because he was out of
state.   Orchitt  did  not present Dr. May for  cross-examination
because  Orchitt  ran out of time in presenting  his  case.   The
board gave AT&T the option of cross-examining Dr. May during  the
time  allotted  for  its case-in-chief.  AT&T  objected  to  this
option; in response, the board chair said, If you want to  cross-
examine  him,  you can cross-examine him on your  time  tomorrow.
AT&Ts  attorney indicated that she wanted to think about it;  she
also  indicated that she wanted the record to close the next  day
and  did not want to leave the record open for depositions.   The
next  day, AT&Ts attorney did not ask to cross-examine  Dr.  May,
and at the end of the hearing, AT&Ts counsel explicitly stated on
the  record that AT&T was waiving its right to cross-examine Drs.
May and Keene.
          AT&T contends on appeal that this was not a true waiver
because  the manner in which the board proposed to permit  cross-
examination was constitutionally defective.  It argues  that  the
boards  admission of Dr. Keenes report after it had been informed
that  Dr.  Keene would not be available for cross-examination  at
the  hearing  violated Commercial Union Cos. v. Smallwood.29   In
that  case,  we recognized that a party has the right  to  cross-
examine  a  witness  without bearing the  cost  of  calling  that
witness herself.30  Thus, when a party files a medical report with
the  board,  that party has the responsibility of  producing  the
reports  author at a hearing or deposition to give  the  opposing
party  an  opportunity  to cross-examine  the  author  if  cross-
examination  is  requested.31  Workers  compensation  regulations
require  the  party seeking to introduce a witnesss testimony  by
deposition  to  pay the initial cost of the deposition.32   If  a
subpoena is required, the party requesting the subpoena must bear
that cost as well.33  The boards rulings here appear contrary  to
Smallwood  because  the board admitted Dr. Keenes  and  Dr.  Mays
reports  and then would have required AT&T to conduct depositions
of Orchitts experts in order to cross-examine them.
          But AT&T did not object on the record to the method  of
cross-examination  proposed by the board here, namely  deposition
testimony.  Instead, it simply stated that it waived its right to
cross-examine Drs. May and Keene.  Because AT&T did  not  qualify
or  limit its waiver of its right of cross-examination, it cannot
now  claim  that the board erred in denying its right  to  cross-
examine Drs. May and Keene.34
          2.   The  boards  refusal to require an EME before  the
          We  review  an  agencys application  of  a  statute  or
regulation  to  a  particular  factual  situation  for  abuse  of
discretion  or  arbitrariness.35  The board  did  not  abuse  its
discretion by denying AT&Ts March 2003 pre-hearing request for  a
follow-up  EME.   Alaska  Statute 23.30.095(e)  provides  that  a
medical  examination requested by the employer not less  than  14
days  after  injury,  and  every 60  days  thereafter,  shall  be
presumed to be reasonable.  AT&T made its request for a follow-up
EME  within  the  time  limits set out in that  statute.   Before
          making its March 2003 request, AT&T made its last request in
September 2000 that Orchitt attend a medical examination.  Due to
Orchitts  new expert reports, AT&T scheduled a follow-up  EME  in
early   April  2003.   The  board  decided  that  the   statutory
presumption  for an EME was overcome because AT&T  requested  the
follow-up  EME too close to the April 8, 2003 hearing  date.   At
the  April 1 hearing, the board gave AT&T the option of obtaining
a  follow-up EME after the hearing.  The board later  ruled  that
after  the hearing ended it would not leave the record  open  for
AT&T to submit a follow-up EME.
          Although it may appear that the board reversed  course,
AT&T told the board on April 8 that it wanted the record to close
the  following  day,  April 9.  Because AT&T affirmatively  asked
that  the  record close on April 9, there was no reason  for  the
board  to  leave the record open for AT&T to submit  a  follow-up
EME.  We cannot determine whether AT&T could have been harmed  by
the  boards  action  in denying AT&Ts request for  a  pre-hearing
follow-up  EME, because AT&T apparently took no action after  the
hearing  to obtain a follow-up EME.  The board had given AT&T  an
opportunity to obtain a post-hearing EME.  Nothing prevented AT&T
from  scheduling  an  EME after the hearing and  petitioning  the
board  to  reopen the record to consider it.36  If the board  had
then  refused to reopen the record to consider the EME,  the  EME
would  have  functioned like an offer of proof available  to  any
appellate  tribunal determining whether AT&T was  harmed  by  the
boards  failure  to  require an EME before  the  hearing  or  its
refusal to consider any evidence produced by the EME.37   And  if
the  board  had  reopened  the  record  and  considered  the  EME
evidence,  any possible error in failing to require a pre-hearing
EME would have been harmless.
          Moreover,  even though AT&T makes much  of  the  boards
denial  of  a pre-hearing follow-up EME, it does not explain  why
other  measures  short of an EME would have been unsuccessful  in
rebutting  Orchitts last-minute experts.  AT&T does not  explain,
for  example, why it could not have called or why it did not call
Dr.  Swanson, the ophthalmologist who examined Orchitt and  found
nothing wrong, as a witness to rebut Dr. Keenes report.  It  also
does  not explain why cross-examination without an EME might  not
have been effective.  AT&T also does not explain why it needed an
actual  examination of Orchitt when it could have  used  the  raw
data generated by Dr. Mays tests of Orchitt.38  Furthermore,  Dr.
Robinson, one of AT&Ts experts, testified at the hearing that  he
had  read  Dr.  Mays  report,  and he offered  general  testimony
tending to discount neuropsychological testing.
          Finally, AT&T did not object at the end of the  hearing
to  closing  the  record.   It did not ask  to  present  rebuttal
evidence in any form other than a follow-up EME, nor did it  make
an  offer  of proof about what evidence it might have offered  in
rebuttal.  A partys failure to make an offer of proof acts  as  a
waiver  of  any  claim  of  error  regarding  the  exclusion   of
unspecified evidence.39
          3.   The   boards  denial  of  AT&Ts  request   for   a
          Soon after Orchitt presented his new expert reports  in
the month before the hearing, AT&T requested a continuance of its
expert  medical testimony.  AT&Ts continuance requests  were  all
related to obtaining a follow-up EME to develop rebuttal evidence
in  response to Orchitts experts, Dr. May and, later, Dr.  Keene.
AT&T made its requests in reliance on 8 AAC 45.074.
          The  regulatory standard for granting a continuance  is
good cause.40  AT&T argued to the board that there was good cause
for   a  continuance  under  8  AAC  45.074(b)(1)(I)  and  8  AAC
45.074(b)(1)(L),  which state that good cause for  a  continuance
exists when
               (I) the board determines that despite  a
          partys  due diligence in completing discovery
          before  requesting a hearing  and  despite  a
          partys  good faith belief that the party  was
          fully prepared for the hearing, evidence  was
          obtained  by  the  opposing party  after  the
          request  for  hearing was filed which  is  or
          will  be  offered  at the  hearing,  and  due
          process  required  the party  requesting  the
          hearing  be  given an opportunity  to  obtain
          rebuttal evidence;
          . . .
               (L) the board determines that despite  a
          partys  due diligence, irreparable  harm  may
          result  from a failure to grant the requested
          continuance or cancel the hearing.
          The  scope of review for an agencys application of  its
own  regulations to the facts is limited to whether  the  agencys
decision was arbitrary, unreasonable, or an abuse of discretion.41
The  board did not abuse its discretion in failing to grant AT&Ts
request  for  a continuance.  The board appears to have  balanced
its  desire to go forward with the hearing in the case, which had
been pending for quite some time,42 with AT&Ts due process rights
when  it: (1) offered to leave the record open so that AT&T could
rebut Dr. Keenes report or cross-examine Dr. Keene at deposition;43
(2) afforded AT&T the opportunity to cross-examine Dr. May at the
hearing   albeit on AT&Ts own time; and (3) offered to leave  the
record  open  at the close of the hearing.44  AT&T waived  cross-
examination  of  Drs. Keene and May and did  not  object  to  the
boards closing the record at the end of the hearing.  Because the
board offered AT&T some opportunity to present evidence after the
hearing in lieu of granting a continuance, we cannot say that the
board abused its discretion here.
          4.   AT&Ts right to an impartial tribunal
          Due  process  gives  a  party  the  right  to  have  an
impartial tribunal hear the partys case.45  AT&T contends that the
hearing  officer  in  this case was biased because  he  had  been
elected to an officer position in the Alaska Chapter of the  AFL-
CIO   the   summer  before  the  hearing.   It  argues  that   AS
23.30.005(a) and (e) require that a workers compensation  hearing
panel  be  balanced, and that the panel here did  not  meet  this
          requirement.  It also asserts that the hearing officer should
have  disqualified  himself under AS  44.62.450(c),  one  of  the
provisions of the Alaska Administrative Procedure Act.46  Finally,
it contends that the hearing officers conduct violated the Alaska
Code of Judicial Conduct.
               a.   Actual bias or prejudgment
          Administrative  agency personnel  are  presumed  to  be
honest  and  impartial  until  a  party  shows  actual  bias   or
prejudgment.47  To show hearing officer bias, a party  must  show
that  the hearing officer had a predisposition to find against  a
party  or  that the hearing officer interfered with  the  orderly
presentation  of  the evidence.48  We conclude that  the  hearing
officers position as an AFL-CIO vice president is insufficient to
show  actual  or  probable bias on its own.  Although  the  chair
ruled  against AT&T on some procedural questions, that  alone  is
not  sufficient  to show a predisposition to find  against  AT&T.
AT&T  has made no showing that the hearing officer prejudged  any
facts  in this case or was motivated by actual bias in ruling  on
procedural issues.
               b.   Workers compensation statute
          AT&T  alleges  that  the  hearing  panel  violated  the
statutory  requirement of a balanced hearing  panel  because  the
chairs   union  activities  upset  the  balance  in  the   panels
composition.  The workers compensation act provides for panels of
three  members:   a representative of labor, a representative  of
industry,  and  the  commissioner  of  labor  or  the  designated
representative of the commissioner.49  The applicable statute does
not  say that the panel must be neutral, nor does it restrict  in
any  way whom the commissioner can appoint as his representative.
There   is  no  indication  that  the  chair  (the  commissioners
designee) was acting as a second representative of labor or in  a
non-neutral  capacity.   We are unconvinced  that  his  ancillary
union position unbalanced the panel.
               c.   The Alaska Code of Judicial Conduct
          AT&T argues at length that the hearing officer violated
the  Alaska  Code  of Judicial Conduct but does not  address  the
threshold   issue   of   the  codes  applicability   to   workers
compensation  hearing  officers.  It relies  on  one  1988  board
ethics  bulletin that looked to the Code of Judicial Conduct  for
guidance  on  the issue of giving references.  Louisiana  Pacific
Corp. v. Koons, cited by AT&T to support its argument, deals with
a  hearing officers ex parte communications, which are explicitly
prohibited by the Alaska Administrative Procedure Act,  and  says
nothing  about the Code of Judicial Conduct.50  Because AT&T  has
not adequately briefed the issue of the applicability of the Code
of  Judicial Conduct to workers compensation hearing officers, we
will not consider it.51  Nor will we consider any claim that  the
hearing  officers  conduct violated the Administrative  Procedure
Acts provision regarding disqualification of hearing officers.52
          We do not believe that the hearing officers position as
a  union officer violated the code in any event.  While the  Code
of  Judicial Conduct prohibits judges from serving as officers of
organizations  that are likely to be engaged in proceedings  that
come  before the judge,53 unions are not generally parties before
          the workers compensation board, even though their individual
members  may  come  before the board.  Hearing  officers  in  the
workers  compensation division are members of  the  Alaska  State
Employees  Association,  which is affiliated  with  the  AFL-CIO.
Because the hearing officers position as a union officer seems to
have  arisen directly out of his employment for the state,  AT&Ts
argument could potentially disqualify all hearing officers.
          The   board  did  not  abuse  its  discretion  in   its
procedural  rulings; it therefore did not deny AT&T due  process.
Because substantial evidence exists in the record to support  the
boards  findings,  we  AFFIRM the superior  court  judgment  that
affirmed the boards rulings.

     1     We  refer to AT&T Alascom and its insurer, Ward  North
America, Inc., collectively as AT&T.

     2     A  waveguide  is  part  of a transmission  system  for
microwaves.  It guides radio frequency waves along the path  they
take  from  one  point to another.  The waveguide  in  this  case
consisted  of  rigid, hollow, rectangular pieces  of  metal  with
flanges  on  both ends.  Segments of waveguide were connected  at
their flanges by bolts.

     3    A hertz is a unit of measurement.  It equals the number
of  cycles  of a wave that pass through a given point in  a  one-
second  period.  Six gigahertz means that six billion  cycles  of
the wave pass through a point in one second.

     4     The American National Standards Institute (ANSI)  also
established  exposure  guidelines for radio frequency  radiation.
The  boards  engineering expert testified in his deposition  that
for  the  frequency Orchitt was exposed to, the ANSI standard  is
twice the FCC standard.

     5     A  transient ischemic attack involves a small clot  in
the blood vessels of the brain that dissolves in a few hours.

     6    An MRI, in contrast, looks at structural changes.

     7    8 Alaska Administrative Code (AAC) 45.120(f) (2004).

     8     Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).

     9    Kelly v. Zamarello, 486 P.2d 906, 916 (Alaska 1971).

     10    DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).

     11    Id.

     12     AS 23.30.120; Bradbury v. Chugach Elec. Assn, 71 P.3d
901, 905 (Alaska 2003).

     13     Bradbury,  71 P.3d at 905 (quoting Temple  v.  Denali
Princess Lodge, 21 P.3d 813, 815-16 (Alaska 2001)).

     14    Id.

     15    Id. at 906.

     16    Id.

     17    Commercial Union Cos. v. Smallwood, 550 P.2d 1261, 1267
(Alaska 1976).

     18    Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985).

     19     Yahara  v. Constr. & Rigging, Inc., 851 P.2d  69,  72
(Alaska  1993) (citing Delaney v. Alaska Airlines, 693 P.2d  859,
863-65 (Alaska 1985)).

     20    Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d
993, 996-97 (Alaska 1970).

     21    State v. Coon, 974 P.2d 386 (Alaska 1999).

     22    Id. at 395 (citing Daubert v. Merrill Dow Pharm., Inc.,
509 U.S. 579, 593-94 (1993)).

     23    AT&T objected to the admission of Dr. Russells March 4,
2003 report on other grounds.

     24    Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska

     25    AS 23.30.122.

     26    The board did not explicitly identify which experts it
relied on in making its findings.

     27    AS 23.30.122.

     28     Bradbury  v.  Chugach Elec. Assn, 71  P.3d  901,  909
(Alaska  2003) (quoting Childs v. Copper Valley Elec.  Assn,  860
P.2d 1184, 1189 (Alaska 1993)).

     29    Smallwood, 550 P.2d at 1266-67.

     30    Id. at 1266.

     31    The board procedure for requesting cross-examination of
the author of a medical report is set out in 8 AAC 45.052 (2004).

     32    8 AAC 45.054(a) (2004).

     33    8 AAC 45.054(c) (2004).

     34     Williams  v.  Abood, 53 P.3d 134, 148  (Alaska  2002)
([F]ailure  to make the appropriate objection during the  hearing
waives the right to appeal procedural errors.).

     35    See Rose v. Commercial Fisheries Entry Commn, 647 P.2d
154, 161 (Alaska 1982).

     36      Nothing  in the statute requires that an  EME  occur
before  a  hearing.   AS  23.30.095(e)  provides,  in  part,  The
employee  shall, after an injury, at reasonable times during  the
continuance of the disability . . . submit to an examination by a
physician . . . of the employers choice . . . .

     37     Cf.  Adamson v. Univ. of Alaska, 819 P.2d 886, 889-90
(Alaska 1991).

     38     AS  23.30.095(e).   AT&T also  alleged  that  it  had
difficulty obtaining the raw data from Dr. Mays office,  but  the
board  indicated  that it would consider this issue  in  deciding
whether or not to grant a continuance.

     39    Adamson, 819 P.2d at 889-90.

     40    8 AAC 45.074(b) (2004).

     41    J.L. Hodges v. Alaska Constructors, Inc., 957 P.2d 957,
960  (Alaska  1998)  (citing Rose v. Commercial  Fisheries  Entry
Commn, 647 P.2d 154, 161 (Alaska 1982)).

     42     In  an interlocutory decision in the case, the  board
noted  that the chair of the pre-hearing conference did not  want
to  grant a continuance because the case had been languishing for
several  years (though not necessarily through the fault  of  the
employer) . . . .

     43    Cf. State, Dept of Natural Res. v. Greenpeace, 96 P.3d
1056, 1066 (Alaska 2004).

     44     The board chair said to AT&Ts attorney, [I]f you want
to  leave  the record open Im certainly open to doing  that.   He
also  asked  if AT&T wanted to leave the record open  for  cross-
examination after he said that he would not leave the record open
for a follow-up EME.

     45    Schweiker v. McClure, 456 U.S. 188, 195 (1982); Amerada
Hess  Pipeline Corp. v. Alaska Pub. Utils. Commn, 711 P.2d  1170,
1180 (Alaska 1986).

     46    AS

     47     Bruner  v.  Peterson, 944 P.2d 43, 49  (Alaska  1997)
(citing  Earth Res. Co. v. State, 665 P.2d 960, 962  n.1  (Alaska

     48     Tachick Freight Lines v. Dept of Labor, 773 P.2d 451,
453  (Alaska  1989)  (citing In re Cornelius,  520  P.2d  76,  83
(Alaska 1974)).

     49     Former  AS 23.30.005(a).  The statute was amended  in
2005  to  say, Each panel must include the commissioner of  labor
and  workforce  development or a hearing  officer  designated  to
represent the commissioner, a representative of industry,  and  a
representative  of  labor  .  . . .   The  2005  amendments  also
authorize the board to provide procedures to avoid conflicts  and
the appearance of impropriety in hearings.  AS 23.30.005(a).

     50     Louisiana Pac. Corp. v. Koons, 816 P.2d 1379, 1382-83

     51     Adamson,  819  P.2d at 889 n.3.   We  note  that  new
regulations governing hearing officer conduct look to the Code of
Judicial  Conduct for guidance, although they do  not  explicitly
apply the code to hearing officers.  2 AAC 64.030(c) (2006).   No
one  argues that these regulations apply here, and we express  no
opinion  as to the applicability of the Code of Judicial  Conduct
to hearing officers in future cases.

     52    Id.; AS 44.62.450(c).

     53    Alaska Code of Judicial Conduct Canon 4C(3)(a) (2006).

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