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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barrington v. Alaska Communications Systems Group, Inc. (10/24/2008) sp-6321
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
| DR. EDWARD BARRINGTON, D.C., | ) |
| ) Supreme Court No. S- 12609 | |
| Appellant, | ) |
| ) Alaska Workers Compensation | |
| v. | ) Appeals Commission No. 06- 015 |
| ) | |
| ALASKA COMMUNICATIONS | ) O P I N I O N |
| SYSTEMS GROUP, INC.; LIBERTY | ) |
| MUTUAL INSURANCE CO.; and | ) No. 6321 October 24, 2008 |
| ALASKA WORKERS | ) |
| COMPENSATION APPEALS | ) |
| COMMISSION, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Alaska Workers Compensation
Appeals Commission, Kristin Knudsen, Chair.
Appearances: William J. Soule, Law Office of
William J. Soule, Anchorage, for Appellant.
Jeffrey D. Holloway and Rebecca Holdiman
Miller, Holmes Weddle & Barcott, P.C.,
Anchorage, for Appellees Alaska
Communications Systems Group, Inc. and
Liberty Mutual Insurance Company. Krista S.
Stearns, Assistant Attorney General,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Alaska Workers
Compensation Appeals Commission.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Dr. Edward Barrington performed medical services for a
workers compensation claimant who later settled her claim with
her employer, without notice to her unpaid healthcare providers,
including Dr. Barrington. After the Alaska Workers Compensation
Board approved the settlement without notice to Dr. Barrington,
he filed his own claim against the employer for payment. Both
the board and the Alaska Workers Compensation Appeals Commission
held that the employees settlement barred Dr. Barringtons claim.
Because Dr. Barrington should have been given notice of the
pending settlement, we reverse the decisions of the board and
appeals commission and remand for further proceedings.
II. FACTS AND PROCEEDINGS
Noelle Williams filed a workers compensation claim
against her employer, Alaska Communications Systems Group, Inc.
(ACS), after she experienced job-related pain. ACS initially
paid her medical bills but later controverted the need for
further chiropractic treatment after its medical experts stated
that any treatment Williams needed was not the result of a work-
related injury. Her treating physician referred Williams to Dr.
Edward Barrington for a permanent partial impairment (PPI)
evaluation; Dr. Barrington performed the evaluation and
electrodiagnostic testing in November 2004. ACS controverted all
benefits in February 2005. When Dr. Barrington inquired,
Williamss workers compensation attorney told Dr. Barrington that
his claim was going to be included with Williamss claim.
According to Dr. Barrington, he delayed filing his own claim for
payment based on this assurance. Williamss attorney indeed filed
a copy of Dr. Barringtons bill with the board in March 2005.
In April 2005 Williams and ACS entered into a written
settlement agreement, subject to board approval. Per the terms
of the proposed settlement, Williams would accept $7,500 as
payment for her workers compensation claims, including any unpaid
medical expenses; she would waive future medical benefits; and
she would indemnify ACS for any payments it later made on her
claim. The agreement did not disclose the total amount of
Williamss outstanding medical bills and stated that the parties
anticipated that the settlement amount was more than sufficient
to cover the costs of any future medical treatment that may be
necessary. No one gave the unpaid healthcare providers,
including Dr. Barrington, any notice of the proposed settlement
or tried to join them as parties. The board approved the
settlement agreement in May 2005 without a hearing.
Not long after the board approved the settlement,
Williams filed for bankruptcy; she listed Dr. Barrington and
other healthcare providers as creditors. The bankruptcy court
discharged Williamss debt to Dr. Barrington and entered a final
decree in September 2005.
Dr. Barrington filed a workers compensation claim
against ACS in early July 2005, seeking payment for his PPI
evaluation.1 ACS opposed, relying on its settlement with
Williams. After a hearing, the board denied Dr. Barringtons
claim, ruling that his recourse was against Williams in the civil
courts. Dr. Barrington asked the board to reconsider, arguing
that he should have been joined as a party before the settlement
was approved. The board confirmed its earlier decision.
Dr. Barrington appealed to the appeals commission,
which affirmed. The appeals commission agreed with the board
that Dr. Barrington had a civil cause of action against Williams
and decided that Dr. Barringtons due process rights were
protected by the survival of his common law action for collection
of a debt if his claim is extinguished in a settlement to which
he is not a party. It determined that Dr. Barrington did not
need to be joined as a real party in interest because his
economic interest was represented in the employees claim. The
appeals commission further held that ACSs liability was
extinguished by the settlement and that Dr. Barrington had no
independent right to relief. Reasoning that no statute required
notice to him, it rejected his contention that he should have at
least received notice of the proposed settlement.
Dr. Barrington appeals.
III. DISCUSSION
A. Standard of Review
When we review an administrative agency decision that
has been appealed first to the superior court, we directly review
the agency decision.2 Here, the first level of review of the
board decision was performed by an administrative agency, the
Alaska Workers Compensation Appeals Commission.3
Dr. Barrington asks us to review the boards decision
directly, or at least give no deference to the appeals
commissions decision. ACS and the appeals commission both argue
that we should review the appeals commissions decision.
The parties also disagree about the type of question
this appeal presents. According to ACS, the appeals commissions
interpretation of the Alaska Workers Compensation Act should be
subject to reasonable basis review because the appeals commission
has expertise in workers compensation law. The standard of
review we apply is based on the type of question presented.4 We
have frequently applied the independent judgment standard of
review in construing the Alaska Workers Compensation Act.5
This appeal presents issues of law that do not involve
agency expertise. The boards decision was based on contract
principles. The appeals commission ultimately based its decision
on statutory interpretation and due process. We apply our
independent judgment to the questions presented here, adopting
the rule of law that is most persuasive in light of precedent,
reason, and policy.6
Because appeals commission decisions have precedential
value for the board and the appeals commission, because the
appeals commissions decision represents the final administrative
action in a workers compensation case,7 and because the questions
presented raise questions of law not involving agency expertise,
here we review the appeals commissions decision.
We decline to adopt here a general rule for appeals
from the appeals commission about the standards we will use to
review other types of rulings that may be presented in workers
compensation appeals, such as factual determinations, decisions
committed to adjudicator discretion, or rulings on questions of
law that involve agency expertise.8 We also express no opinion
about whether we will review the appeals commissions decision or
the boards decision in other circumstances.9
B. The Appeals Commission Is Not a Party to Appeals from
Its Decisions to this Court.
The appeals commission appeared in this appeal,
asserting that it is a party before this court. It filed an
appellees brief, as did ACS and its insurer, Liberty Mutual
Insurance Company. At oral argument before us, the appeals
commission relied on court rules governing appeals to the
superior court to support its contention that it is a party.
We hold that the appeals commission is not a party to
appeals from its decisions to this court. In appeals to the
superior court, administrative agencies are parties to the appeal
under court rules.10 If one party appeals the superior courts
decision in an administrative appeal to this court, all the other
parties to the superior court appeal are treated as appellees
here.11 Appeals from the appeals commission are heard directly by
this court, bypassing the superior court.12 No statute or court
rule authorizes the appeals commission to be a party to an appeal
from its decisions to this court.
The Alaska Workers Compensation Act provides that the
director of the Division of Workers Compensation may be a party
to an appeal to this court.13 The act permits the director to
intervene in appeals commission proceedings and to file appeals
if a board order concerns unsettled legal issues and a party in
interest is unrepresented.14 The appeals commission must serve
the director with its decisions.15 The director may ask the
appeals commission to reconsider a decision, even if the director
was not previously a party.16 These provisions suggest that the
legislature intended the director or the Division of Workers
Compensation itself, when it is a party to the appeals commission
proceeding, to represent the executive branch in appeals to this
court when necessary.17 The legislature, however, said nothing
authorizing the appeals commission to be a party on appeal to
this court, or implying that the appeals commission may
participate as a party in appeals taken from its own decisions.
Moreover, the appeals commission, as an adjudicatory body, has no
more inherent interest or stake in defending its orders than
would a superior court in an appeal from a superior court
judgment.18 We therefore hold that the appeals commission is not
a party to appeals from its decisions to this court.
C. Dr. Barrington Should Have Been Joined as a Party or
Should Have Received Notice of the Proposed Settlement.
Dr. Barrington argues that due process required that he
be joined as a party or be given notice of the impending
settlement before the board approved it. He contends that he had
a right to bring an independent claim and, because Williams had
no authority to act on his behalf, that the settlement could not
extinguish his claim. ACS responds that Dr. Barrington could
have joined himself before the settlement, but did not. It
contends that Williams could accept payment for Dr. Barringtons
bill and could, without notice to him, waive Dr. Barringtons
ability to be paid directly by ACS. The appeals commission
agreed with ACS that Williams could completely discharge ACSs
liability without notice to Dr. Barrington. Construing the
Alaska Workers Compensation Act as permitting Dr. Barrington to
sue Williams in court for payment for the treatment he provided,
the appeals commission reasoned that Dr. Barringtons due process
rights were not violated. We conclude that the board should have
joined Dr. Barrington as a party to Williamss claim before it
approved the settlement. Because the proposed settlement
potentially foreclosed Dr. Barringtons ability to recover payment
for his services, due process required notice to or joinder of
Dr. Barrington before approval.
1. The boards joinder regulation
Dr. Barrington argued before the board that he should
have been joined as a party to Williamss case because he had a
right to relief arising out of Williamss claim. The board
rejected his argument without analysis. The appeals commission
looked at whether Dr. Barrington had to be joined as a party and
decided that AS 23.30.030(4), which authorizes healthcare
providers to file claims in their own names, and 8 Alaska
Administrative Code (AAC) 45.040, the boards joinder regulation,
did not compel the employee to join every creditor who may have
provided services or treatment of the workers compensation
injury.19 In essence, the appeals commission determined that Dr.
Barrington and Williams had identical interests and that Williams
could therefore represent Dr. Barringtons interests adequately
before the board.
We agree with the appeals commission that AS
23.30.030(4) and 8 AAC 45.040 do not require joinder of every
healthcare provider in every case. But we conclude that they
required joinder of Dr. Barrington because he potentially had a
right to relief, Williams could not adequately advocate for him,
and his absence affected his ability to protect his interest.
Dr. Barringtons assertion that he had a right to bring
an independent claim is rooted in the language of AS
23.30.030(4), which states in part that a workers compensation
insurer will promptly pay to the person entitled to them the
benefits conferred by this chapter and that a workers
compensation insurance policy is a direct promise by the insurer
to the person entitled to physicians fees . . . and is
enforceable in the name of that person.20 We have interpreted
this subsection to mean that an employer is directly liable to
health-care providers for treatment of work-related injuries.21
Dr. Barrington reasons that because he provided medical services
to Williams for a work-related injury, ACS had a direct liability
to him that the board could not extinguish without giving him
notice or an opportunity to be heard. ACS denies that Dr.
Barrington had an independent claim against it and denies that
his services were work related.
The board decided that Williams had contractually
waived payment for Dr. Barringtons services in the settlement and
that Dr. Barringtons recourse was within the civil courts. The
appeals commission construed subsection .030(4) as permitting
healthcare providers to file claims in their own names, but
determined that the real party in interest is the employee, not
the provider. It decided that Dr. Barrington was not a party in
interest before he filed his claim.
There can be more than one real party in interest in a
given lawsuit or claim.22 Whether a person is a real party in
interest under the Alaska Civil Rules depends on whether he or
she has a substantive right to bring a claim.23 No one disputes
that Dr. Barrington could have filed a workers compensation claim
in his own name before the settlement and joined Williams as a
party to his claim. Had he done so, Dr. Barringtons claim
presumably would have been joined with Williamss, he would have
been a party, and he would have had to consent to a settlement
that affected his interest.24 From this, we conclude that Dr.
Barrington had a potential right to relief that arose from
Williamss claim.
By regulation, in board proceedings a person other than
the injured worker shall join the employee as a party.25 Unlike
the Alaska Civil Rules, board regulations do not otherwise
clearly distinguish between permissive and compulsory joinder.26
8 AAC 45.040(c) states that a person who may have a right to
relief in respect to or arising out of the same transaction . . .
should be joined. This subsection seems to give the board some
discretion in deciding whether to allow or require joinder. But
the boards discretion is not absolute; in this case, Dr.
Barrington was a necessary party whose absence, as we will see,
violated due process.27
Dr. Barrington could have become a party to Williamss
claim before settlement either by filing a claim in his own name
and joining his claim to Williamss, or by being joined.28 A
physician or other non-party may not intervene in an existing
board case; instead, 8 AAC 45.040(f) states that proceedings to
join a person are begun either by a party filing a petition to
join the person or by the board serving a notice to join the
person.29 ACS is incorrect in implying that Dr. Barrington could
be joined only if he took affirmative steps to be joined as a
party. ACS could have joined Dr. Barrington as a party, but did
not.
The regulation lists factors the board is to consider
in deciding whether to join someone.30 For purposes of Dr.
Barringtons case, two of the factors are of particular
importance: whether the persons presence is necessary for
complete relief and due process among the parties; and whether
the persons absence may affect the persons ability to protect an
interest, or subject a party to a substantial risk of incurring
inconsistent obligations.31 These factors are substantially
similar to those in Alaska Civil Rule 19(a), which addresses
compulsory joinder.32
The decision whether joinder is necessary in a civil
suit is a practical one.33 Our analysis in this case turns on
practical considerations as well. In a workers compensation
case, there is often a unity of interest between the employee and
her physicians. The employee wants benefits, including future
medical benefits, and will present providers past bills to the
board so it can order payment. Here, Dr. Barrington testified
that Williamss attorney assured Dr. Barrington that the attorney
would present Dr. Barringtons bill to the board for payment, and
the attorney indeed filed a copy of the bill with the board. In
most cases, joinder of all physicians who have provided treatment
would be a spectactularly wasteful expenditure of resources and
effort.34 But in some cases the interests of the employee and the
healthcare provider differ sufficiently that the employee is
adverse to a medical provider or cannot adequately represent the
providers interest.35
The interests of the healthcare provider and the
claimant diverged in this case. No one disputes that Williams
and ACS agreed to settle the case for an amount they knew was
inadequate to pay all of Williamss outstanding medical bills. No
one gave the healthcare providers notice of the pending
settlement or tried to join them so they could introduce evidence
that their services were reasonable and necessary and therefore
payable by the employer.36 The board did not try to join them
either, but it is unclear whether the board was aware of the lack
of unity of interests between Williams and her providers.
ACS asserts that the board knew that Williams was
settling for an amount that would not cover her bills, but we
cannot determine the accuracy of this assertion from the
appellate record. The boards awareness of any difference between
the amount of the settlement and the total of the unpaid provider
bills is relevant to whether Williams was able to protect Dr.
Barringtons interest and whether the settlement was in Williamss
best interest.37
The board held no hearing and made no specific findings
why the settlement was in Williamss best interest. Settlements
that waive medical benefits are presumed not [to be] in the
employees best interest, and will not be approved absent a
showing by a preponderance of the evidence that the waiver is in
the employees best interest.38 This settlement agreement waived
medical benefits, so it was presumed not to be in Williamss best
interest. ACS asserts that the board was aware that Williams had
outstanding medical bills exceeding the settlement amount, but
the language of the settlement is ambiguous. The agreement
states or implies that all providers will be paid. Thus, the
agreement first states, Except as otherwise provided in this
Agreement, the parties agree that the employer has paid all
compensation and medical benefits which are due as of the date
the employee signs this Settlement Agreement. It also states
that the settlement amount reflects payment of disputed past
medical expenses as well as a waiver of future medical expenses.
It then provides that the parties anticipate that the settlement
monies are more than sufficient to cover the costs of any future
medical treatment that may be necessary. The agreement never
specifies the amount of Williamss unpaid bills or which past
medical expenses were disputed.39 The board could reasonably have
concluded from the quoted language that ACS was paying Williams
enough money to cover all of her past medical bills in addition
to some future medical treatments. Given these provisions in the
agreement, the board may not have been aware that Williamss and
Dr. Barringtons interests diverged; the agreements quoted
representations may have influenced the boards assessment of
Williamss best interest as well.
Dr. Barringtons absence from the board proceeding
affected his ability to protect his interest. The appeals
commission determined that Dr. Barringtons common law cause of
action against Williams survived the settlement, but text of the
pertinent statute does not seem to support this conclusion.
Alaska Statute 23.30.097(f) states, An employee may not be
required to pay a fee or charge for medical treatment or service
provided under this chapter.40 The appeals commission construed
subsection .097(f) as applying while the treatment is not
controverted (or a controverted claim has not been decided by the
board). The parties appear to agree that if the board determines
that a claim is compensable, subsection .097(f) prohibits a
healthcare provider from bringing a civil action against an
injured worker for covered services. The parties agree that, if
the board determined that an injury was not work related,
subsection .097(f) would not apply because medical services or
treatment would not have been provided under the workers
compensation act. But no board decision establishes that Dr.
Barringtons services were not work related. Absent a board
determination that the injuries were not work related, subsection
.097(f) could well foreclose Dr. Barringtons ability to sue
Williams for payment.
The appeals commission did not determine whether a
settlement decides a controverted claim and, if it does, how it
resolves the claim. Language in the commissions decision
suggests that a settlement dismisses a workers compensation
claim. Although an approved settlement discharges an employers
liability, it is enforceable as a board order or award, so the
settlement does not dismiss a claim.41 Approval of the settlement
here could be construed as deciding that Williams had a covered
injury, for there was no other reason for ACS to pay her
benefits. If so, Williamss pre-settlement medical care would have
been, in the words of subsection .097(f), provided under this
chapter, and Dr. Barrington could not sue her for his unpaid
services.42
Apart from the statutory bar, the settlement may also
prevent Dr. Barrington from establishing that his services were
reasonable and necessary. An employer is only responsible for
paying for an injured employees reasonable and necessary medical
expenses.43 Williams had many unpaid medical bills at the time of
the settlement; information Williams later provided the
bankruptcy court suggests that the unpaid total was about twice
the amount of the workers compensation settlement. According to
ACS, the parties intended Williams to use the settlement money to
pay these bills. Some of Williamss medical expenses were for
chiropractic care that exceeded the boards frequency standards;
the excess treatments were presumptively not reasonable and
necessary.44 The board, in approving the settlement, in effect
let Williams decide which treatments were reasonable and
necessary. By not giving Dr. Barrington notice of the proposed
settlement and an opportunity to present his claim, the board
denied him the opportunity to show that the medical care he
provided was reasonable and necessary and that other medical care
was not.
Failure to join Dr. Barrington also made it harder for
the board to provide complete relief to the parties and subjected
ACS to the risk of incurring inconsistent obligations.45 As this
appeal demonstrates, ACS was not afforded complete relief by the
settlement. The boards failure to join Dr. Barrington also
exposed Williams and ACS to litigation regarding payment for Dr.
Barringtons services. Depending on the outcome of litigation,
ACS was at risk of inconsistent obligations.
The board has interpreted 8 AAC 45.040 as permitting it
to join persons on its own.46 Because the settlement was
ambiguous, the board erred in failing to join Dr. Barrington when
there was a real risk that he would be unable to protect his
interest and that the existing parties might not be afforded
complete relief.
2. Dr. Barringtons due process claim
We have determined that due process applies to
administrative proceedings.47 We have adopted the three-part
balancing test from Mathews v. Eldridge to determine whether
administrative proceedings satisfy due process.48 This test takes
the following into account:
[f]irst, the private interest that will be
affected by the official action; second, the
risk of erroneous deprivation of such
interest through the procedures used, and the
[probable] value, if any, of additional or
substitute procedural safeguards; and
finally, the Governments interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.[49]
We first consider Dr. Barringtons private interests.
He asserts two: his interest in being paid for his services, and
his procedural interest in having the board hear his claim. The
appeals commission decided that Dr. Barrington only had an
economic interest and that this interest was represented by
Williams. Because Dr. Barrington had an independent right to
file a claim and Williams could not adequately represent his
interest, we conclude that Dr. Barrington had a cognizable
property interest in filing an independent claim and that this
interest was entitled to due process protection.50
The second step in our due process analysis is
evaluating the risk of erroneous deprivation using current
procedures and the benefits of additional process. Dr.
Barrington asserts that the risk of erroneous deprivation using
the boards procedures is one hundred percent; ACS counters that
Dr. Barrington had the opportunity to join his claim before the
settlement and slept on his rights. We disagree with ACS that
Dr. Barrington delayed unduly in filing his claim. Given the
assurance he received from Williamss attorney, who then filed Dr.
Barringtons bill with the board, Dr. Barrington initially
reasonably relied on Williams to protect his interest. The
record does not reflect precisely when Dr. Barrington became
aware of the settlement, but he filed his own claim about two
months after the board approved the settlement and within six
weeks after Williams filed for bankruptcy. The record does not
establish that Dr. Barrington learned, in time to file his own
claim and seek joinder before the board considered and approved
the settlement, that the proposed settlement would not fully
compensate him for his services.
In the abstract, board regulations appear adequate to
protect the due process interests of healthcare providers in
board proceedings. But the manner in which the board applied the
regulations here subjected Dr. Barrington to the risk that he
would be unable to obtain payment for his services. When a
judgment has the effect of destroying a persons rights, failure
to join a person to the action from which the judgment arose may
amount to a violation of due process.51 Because AS 23.30.097(f)
could foreclose Dr. Barringtons ability to sue Williams, or at
least make collection problematic even without the complication
of Williamss bankruptcy, due process required his joinder.
The final step in our analysis is determining the
governments interest. The appeals commission expressed concern
that compulsory joinder of healthcare providers would impede
settlement and crowd workers compensation claims. ACS echoes
these fears and argues that additional process would unduly
burden employers and put past settlements at risk. But the board
and appeals commission decisions in this case give healthcare
providers an incentive to file independent claims early in a
workers compensation case or risk having their right to payment
compromised without prior notice. The significant disruption
caused by even infrequent attempts to set aside settlements would
seem to counterbalance any burden that might be created by
additional process and the possibility of joining healthcare
providers.
The board may have an additional administrative burden
in joining medical providers in some claims. The board will have
to examine settlements to be sure that healthcare providers
claims are not foreclosed without notice. But we are not
convinced that the administrative burden on the board will be
great: board regulations already create a presumption that
settlements waiving medical benefits are not in an employees best
interest, and the workers compensation act requires the board to
review settlements that waive future medical benefits.52 In
addition, board regulations already permit providers to file
their own claims.53 We do not hold that parties need to notify or
join healthcare providers in all circumstances. But when, as
here, a settlement is intended to pay for or compromise past
medical expenses without requiring payment directly to the
providers, the board must provide notice and an opportunity to be
heard to providers whose claims will be extinguished by the
settlement. The board should either begin proceedings to join
providers or give them adequate advance notice of the proposed
settlement so they can file their own claims. Because board
regulations permit the board to consider the objections of the
person whose joinder is sought, providers who do not want to
become parties can object to joinder.54 If, as ACS suggests, most
healthcare providers are willing to forgo payment in such cases,
they can notify the board that they waive their right to payment
and ask the board not to join them. But providers who wish to
present their claims must be given the opportunity to do so.
IV. CONCLUSION
Because we are not able to determine whether the board
was aware of the disparity between the amount of the settlement
and the unpaid provider bills and because the board proceedings
effectively foreclosed Dr. Barringtons right to present his
claim, we REVERSE the decisions of the board and the appeals
commission and REMAND to the appeals commission with instructions
to remand to the board for further proceedings consistent with
this opinion.
_______________________________
1 Dr. Barrington later added a claim seeking payment for
his diagnostic testing.
2 Brown v. Patriot Maint., Inc., 99 P.3d 544, 548 (Alaska
2004) (citing Handley v. State, 838 P.2d 1231, 1233 (Alaska
1992)).
3 See Alaska Pub. Interest Research Group v. State, 167
P.3d 27, 36 (Alaska 2007).
4 See, e.g., Konecky v. Camco Wireline, Inc., 920 P.2d
277, 280 (Alaska 1995); Underwater Constr., Inc. v. Shirley, 884
P.2d 150, 152-53 (Alaska 1994); see also Arnesen v. Anchorage
Refuse, Inc., 925 P.2d 661, 664 n.4, 666 n.12 (Alaska 1996)
(applying de novo review to interpretation of word job in former
AS 23.30.041 and reasonable basis review to tax dependency
determinations); Kirby v. Alaska Treatment Ctr., 821 P.2d 127,
128, 129 n.5 (Alaska 1991) (applying reasonable basis standard to
question of eligibility for rehabilitation benefits and de novo
review to applicability of presumption of compensability to
vocational rehabilitation claims).
5 See, e.g., George Easley Co. v. Estate of Lindekugel,
117 P.3d 734, 740 (Alaska 2005); Meek v. Unocal Corp., 914 P.2d
1276, 1278 (Alaska 1996); Rydwell v. Anchorage Sch. Dist., 864
P.2d 526, 528 (Alaska 1993).
6 Alaska Pub. Interest Research Group, 167 P.3d at 34.
7 AS 23.30.008(a); Alaska Pub. Interest Research Group,
167 P.3d at 41, 45.
8 See Ogden v. State, 395 P.2d 371, 372 (Alaska 1964)
(declining to establish rule of law on matter not in actual
controversy in case).
9 See generally Zeigler Coal Co. v. Dir., Office of
Workers Comp. Programs, U.S. Dept of Labor, 326 F.3d 894, 897
(7th Cir. 2003); Pa. Tidewater Dock Co. v. Dir., Office of
Workers Comp. Programs, U.S. Dept of Labor, 202 F.3d 656, 660 (3d
Cir. 2000) (quoting Janusziewicz v. Sun Shipbuilding & Dry Dock
Co., 677 F.2d 286, 290 (3d Cir. 1982)); Port of Portland v. Dir.,
Office of Workers Comp. Programs, U.S. Dept of Labor, 932 F.2d
836, 838 (9th Cir. 1991).
10 Alaska R. App. P. 602(h) (stating that agency is
appellee in administrative appeal).
11 Alaska R. App. P. 201 (defining trial court as either
district or superior court); Alaska R. App. P. 204(g) (stating
that all parties in trial court are parties to appeal).
12 AS 23.30.129(a) states:
Notwithstanding the provisions of AS
44.62.560, orders of the commission may not
be appealed to the superior court.
Consistent with AS 22.05.010(b), final
decisions of the commission may be appealed
to the supreme court, and other orders may be
reviewed by the supreme court as provided by
the Alaska Rules of Appellate Procedure.
13 AS 23.30.127(a), .129(a), .395(15). Subsection .127(a)
provides:
A party in interest may appeal a compensation
order issued by the board to the commission
within 30 days after the compensation order
is filed with the office of the board under
AS 23.30.110. The director may intervene in
an appeal. If a party in interest is not
represented by counsel and the compensation
order concerns an unsettled question of law,
the director may file an appeal to obtain a
ruling on the question by the commission.
14 AS 23.30.127(a).
15 AS 23.30.128(e) states:
Within 90 days after written briefing on the
appeal is completed or oral argument is held,
whichever is later, the commission shall
issue a decision in writing. The decision
must contain a concise statement of reasons
for the decision, including findings of fact,
if required, and conclusions of law. The
commission shall serve each party and the
director with a copy of the decision.
Appeals may be expedited for good cause by
the commission. Unless reconsideration is
ordered under (f) of this section, a decision
under this subsection is the final commission
decision.
16 AS 23.30.128(f) states:
A party or the director may request
reconsideration of a decision issued under
(e) of this section within 30 days after the
date of service shown in the certificate of
service of the decision. The request must
state specific grounds for reconsideration.
Reconsideration may be granted if, in
reaching the decision, the commission (1)
overlooked, misapplied, or failed to consider
a statute, regulation, court or
administrative decision, or legal principle
directly controlling; (2) overlooked or
misconceived a material fact; (3)
misconceived a material question in the case;
or (4) applied law in the ruling that has
subsequently changed. The panel of the
commission hearing the request for
reconsideration shall consist of the same
members of the panel that issued the
decision. The commission may issue an order
for reconsideration of all or part of the
decision upon request of a party or the
director. Reconsideration is based on the
record, unless the commission allows
additional argument. The power to order
reconsideration expires 60 days after the
date of service, as shown on the certificate
of service, of a decision issued under (e) of
this section. If the commission does not
issue an order for reconsideration within the
time allowed for ordering reconsideration, a
request for reconsideration is considered
denied. If reconsideration is ordered, the
commission shall issue a decision within 30
days after the close of the record on
reconsideration. The commission shall serve
each party in the case with a copy of the
decision upon reconsideration. The decision
upon reconsideration is the final commission
decision.
17 The division can ask the board to issue a stop-work
order or assess a penalty against an employer for failing to have
workers compensation insurance or other required security. AS
23.30.080(d)(f).
18 See Ingalls Shipbuilding, Inc. v. Dir., Office of
Workers Comp. Programs, Dept of Labor, 519 U.S. 248, 265 (1997)
(deciding that in split-function system under Longshore and
Harbor Workers Compensation Act, office of workers compensation
programs rather than Benefits Review Board was proper
administrative agency to be named as respondent in appeal under
Federal Rules of Appellate Procedure).
19 8 AAC 45.040 (2004) provides, in part:
(a) Except for a deceased employees
dependent or a rehabilitation specialist
appointed by the administrator or chosen by
an employee in accordance with AS 23.30.041,
a person other than the employee filing a
claim shall join the injured employee as a
party.
(b) Except for a rehabilitation
specialist appointed by the administrator or
chosen by the employee in accordance with AS
23.30.041, a person who files a claim must
first prove a compensable injury to be
eligible for benefits, or the opposing party
must stipulate to or admit facts from which
the board can find the employees injury is
compensable.
(c) Any person who may have a right to
relief in respect to or arising out of the
same transaction or series of transactions
should be joined as a party.
. . . .
(f) Proceedings to join a person are
begun by
(1) a party filing with the board a
petition to join the person and serving
a copy of the petition, in accordance
with 8 AAC 45.060, on the person to be
joined and the other parties; or
(2) the board or designee serving a
notice to join on all parties and the
person to be joined.
. . . .
(k) If claims are joined together, the
board or designee will notify the parties
which case number is the master case number.
After claims have been joined together,
(1) a pleading or documentary
evidence filed by a party must list the
master case number first and then all
the other case numbers;
(2) a compensation report,
controversion notice, or a notice under
AS 23.30.205(f) must list only the case
number assigned to the particular injury
with the employer filing the report or
notice;
(3) documentary evidence filed for
one of the joined cases will be filed in
the master case and the evidence will be
considered as part of the record in each
of the joined cases; and
(4) the original of the boards
decision and order will be filed in the
master case file, and a copy of the
decision and order will be filed in each
of the joined case files.
(l) After the board hears the joined
cases and, if appropriate, the division will
separate the case files and will notify the
parties. If the joined case files are
separated, a pleading or documentary evidence
filed thereafter by a party must list only
the case number assigned to the particular
injury with the employer filing the pleading
or documentary evidence.
20 AS 23.30.030(4). AS 23.30.395(26) defines medical and
related benefits as including physicians fees, . . . as may
reasonably be required which arise[] out of or [are] necessitated
by an injury.
21 Sherrod v. Municipality of Anchorage, 803 P.2d 874, 875
(Alaska 1990).
22 4 James Wm. Moore et al., Moores Federal Practice
17.10[1] (3d ed. 2007). The board regulations do not use the
term real party in interest in discussing the status of parties.
8 AAC 45.040 (2004). We use the term only because the appeals
commission used the term.
23 Burns v. Anchorage Funeral Chapel, 495 P.2d 70, 72
(Alaska 1972).
24 8 AAC 45.040(a), (k) (2004); 8 AAC 45.160(b) (2004)
(requiring that all settlement agreements be signed by all
parties to the action).
25 8 AAC 45.040(a) (2004).
26 8 AAC 45.040 (2004); Alaska R. Civ. P. 17, 19, 20.
27 Alternatively, the board could have given Dr.
Barrington notice of the proposed settlement, allowed him
adequate time to file his own claim, and joined his claim to
Williamss existing claim. See 8 AAC 45.040(k)(l) (2004)
(providing for joinder of claims).
28 8 AAC 45.040 (2004). This regulation does not specify
how to join claims or when joinder of claims is permitted or
required. 8 AAC 45.040(k) (2004).
29 8 AAC 45.040(f) (2004).
30 8 AAC 45.040(j) (2004). The factors are:
(1) whether a timely objection [to
joinder] was filed in accordance with (h) of
this section;
(2) whether the persons presence is
necessary for complete relief and due process
among the parties;
(3) whether the persons absence may
affect the persons ability to protect an
interest, or subject a party to a substantial
risk of incurring inconsistent obligations;
(4) whether a claim was filed against
the person by the employee; and
(5) if a claim was not filed as
described in (4) of this subsection, whether
a defense to a claim, if filed by the
employee, would bar the claim.
31 8 AAC 45.040(j)(2)(3) (2004).
32 Compare Alaska R. Civ. P. 19(a), with 8 AAC
45.040(j)(2)(3) (2004).
33 See Moore, supra note 22, 19.02[2][c] (noting that
Federal Civil Rule 19 defines absentees who are needed for a just
adjudication in very practical terms).
34 Univ. of Mass. Meml Med. Ctr., Inc. v. Christodoulou,
851 A.2d 636, 646 (N.J. 2004).
35 See, e.g., Nakasone v. Ichiban Japanese Rest., AWCB
Decision No. 00-0039 (March 8, 2000) (joining healthcare
providers to determine whether employee was entitled to
reimbursement for treatments); Hathaway v. State, Dept of Corr.,
AWCB Decision No. 98-0094 (April 16, 1998) (holding that board
had jurisdiction to order healthcare provider to reimburse
employee for excess treatment under AS 23.30.095(c)).
36 See Bockness v. Brown Jug, Inc., 980 P.2d 462, 466-67
(Alaska 1999) (holding employer liable only for reasonable and
necessary medical care).
37 ACS asserted in oral argument before us and at the
hearing on Dr. Barringtons claim that some of the chiropractic
bills in Williamss claim were for services provided by her
husband. If this assertion is accurate, it could provide further
evidence that Williamss and Dr. Barringtons interests diverged.
38 8 AAC 45.160(e) (2004).
39 The board has refused to approve a settlement when the
parties supplied insufficient details about an employees unpaid
past medical expenses. See Lindekugel v. George W. Easley Co.,
AWCB Decision No. 91-0033 (Feb. 6, 1991); see also 8 AAC
45.160(c) (2004) (requiring detailed statement of parties
claims).
40 AS 23.30.097(f) was enacted in 2005, after the
settlement was approved. Ch. 10, 36, FSSLA 2005. A similar
provision, former AS 23.30.095(f), was in effect when the
settlement was signed and approved. We assume that the minor
difference in language between the two statutes is unimportant,
as no one has discussed it.
41 AS 23.30.012(b); see Olsen Logging Co. v. Lawson, 856
P.2d 1155, 1158 (Alaska 1993).
42 Because Williams waived future medical benefits, any
medical care she received after the board approved the settlement
would not be provided under the workers compensation act. AS
23.30.097(f). Dr. Barringtons claim concerns services provided
before the parties entered into the proposed settlement and
before the board approved it. ACS paid Williams $7,500 for
medical services, including Dr. Barringtons services, she
received before the settlement agreement was signed. This
payment implicitly treated Dr. Barringtons services as covered
under subsection .097(f).
43 Bockness v. Brown Jug, Inc., 980 P.2d 462, 466-67
(Alaska 1999).
44 AS 23.30.095(c); 8 AAC 45.082 (2004).
45 See 8 AAC 45.040(j) (2004). Dr. Barrington asserts
that ACS took the risk of incurring inconsistent obligations when
it failed to join him, but the board also has a responsibility to
assess whether a persons presence is necessary.
46 Weatherby v. N. Air Cargo, Inc., AWCB Decision No. 00-
0241 at 6-7 (Nov. 22, 2000) (interpreting AS 23.30.135 and 8 AAC
45.040 as giving board authority to join parties to claims);
Wynne v. State, AWCB Decision No. 99-0219 at 5 (Nov. 1, 1999)
(finding that board had affirmative duty to join former employer
even if employee failed to file claim against it); 8 AAC
45.040(f) (2004).
47 Brandal v. State, Commercial Fisheries Entry Commn, 128
P.3d 732, 738 (Alaska 2006) (citing State, Dept of Health & Soc.
Servs. v. Valley Hosp. Assn, 116 P.3d 580, 583 (Alaska 2005)).
48 Valley Hosp. Assn., 116 P.3d at 583 (citing Mathews v.
Eldridge, 424 U.S. 319 (1976)).
49 Jurgens v. City of North Pole, 153 P.3d 321, 331
(Alaska 2007) (citing Mathews, 424 U.S. at 335).
50 See Patrick v. Lynden Transp., Inc., 765 P.2d 1375,
1378 (Alaska 1988) (noting that unlitigated claim is property
interest subject to due process).
51 7 Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice and Procedure 1602 (3d ed. 2001).
52 AS 23.30.012(b); 8 AAC 45.160(e) (2004).
53 8 AAC 45.040(a) (2004).
54 8 AAC 45.040(f), (j) (2004).
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