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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
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| AT&T ALASCOM and WARD | ) |
| 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 |
| OF ALASKA, DEPARTMENT OF | ) |
| LABOR AND WORKFORCE | ) |
| DEVELOPMENT, DIVISION OF | ) |
| WORKERS COMPENSATION, | ) |
| ) | |
| 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.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
record.
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
minutes.
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
energy.
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
changes.
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
Orchitt.
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.
III. DISCUSSION
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
that.
Q: No. I mean in this case, Doctor. Im
sorry.
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
aspects.
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
condition.
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
process.
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
hearing
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
continuance
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.
IV. CONCLUSION
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
1996).
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 44.62.010.950.
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
1983)).
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
(1979).
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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