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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Burke v. Houston NANA, L.L.C. (1/8/2010) sp-6448
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
| RORY F. BURKE, | ) |
| ) Supreme Court No. S- 12346 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-03-12715 CI |
| ) | |
| HOUSTON NANA, L.L.C., | ) O P I N I O N |
| LUMBERMANS MUTUAL | ) |
| CASUALTY CO., and the ALASKA | ) |
| WORKERS COMPENSATION | ) |
| BOARD, | ) No. 6448 - January 8, 2010 |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Joel H. Bolger, Judge.
Appearances: William J. Soule, Law Office of
William J. Soule, Anchorage, for Appellant.
Patricia L. Zobel, DeLisio Moran Geraghty &
Zobel, PC, Anchorage, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
CARPENETI, Justice.
MATTHEWS, Justice, dissenting in part.
I. INTRODUCTION
An employee was injured three times over the span of
five months while working as a pipe fitter for his employer. The
employee fell twice, injuring his lumbar and cervical spine and
his hip, and also complained of sharp pain in his right hand that
doctors attributed to his work. After he was laid off from his
Alaska job, the employee returned to his home in California,
where he began chiropractic treatment for his spinal injuries.
His employer initially paid benefits without an award; it filed a
notice of controversion after its experts reported that the
employee was medically stable and no longer in need of treatment.
The Alaska Workers Compensation Board held a hearing on the
employees claim for medical and disability benefits and decided
that the employee was entitled to limited chiropractic benefits,
denied the rest of his claims, and awarded him limited attorneys
fees. The employee, through his attorney, also requested a
reemployment eligibility evaluation. The Reemployment Benefits
Administrator (RBA) determined that the employee was eligible for
an evaluation. The employer appealed the RBAs decision to the
board; the board found that the employee had filed his request
too late and denied it.
The employee appealed both decisions to the superior
court. The superior court affirmed the boards decisions in most
respects. We reverse the boards denial of temporary total
disability benefits, its denial of reimbursement for travel
costs, and its reversal of the RBAs decision, and affirm the
boards decisions on all remaining issues.
II. FACTS AND PROCEEDINGS
Rory Burke was employed as a pipe fitter on the Alaska
pipeline for many years, working about half the year in Alaska
and spending the rest of the year at his home in California.
Burke worked for Houston NANA, L.L.C.1 off and on for two years.
In June 2001 he fell when he stepped in a hole that was covered
with wood chips while he was carrying an eighty-pound load down a
hill near Glenallen. He strained his hip and shoulder but did
not take time off work or file a report of occupational injury
form.2 In mid-August he again injured himself when he stepped
into a hole created when a large rock was moved. Finally, during
the night of October 16, severe cramping and numbness in his
right hand woke him up. He attributed the hand pain to work he
had been doing, lifting a heavy beam and bolting heavy Teflon
pads in place and operating an impact gun. He went to an urgent
care clinic in Fairbanks on October 25, 2001, complaining of neck
pain for the previous three months and cramping in his right
hand. The doctor at the clinic diagnosed right epicondylitis3
and cervical neck strain, wrote that the conditions were work-
related, and limited Burke to lifting no more than forty pounds.
Burke signed a report of occupational injury on October 30, 2001.
He was laid off work the same day as part of a reduction in
force. Burke returned to California in early November. Houston
NANA paid workers compensation benefits without an award
effective November 19, 2001.
On November 19, 2001, Burke saw Dr. Joel Taatjes, a
chiropractor in Petaluma, California, for treatment related to
his work injuries. At that time, Dr. Taatjes completed a
California workers compensation form entitled Doctors First
Report of Occupational Injury. Dr. Taatjess report estimated
that Burkes treatment would require approximately thirty visits
over a twelve- to sixteen-week period, or between two to three
visits per week. However, Burke received almost daily treatments
from Dr. Taatjes for about three weeks and then treatments two or
three times a week for another thirty weeks or so. During the
course of his treatment of Burke, Dr. Taatjes sent Houston NANA
progress reports on forms from the State of California Division
of Workers Compensation. Each form included a place for the
doctor to detail the treatment plan, including the methods,
frequency, and duration of planned treatments. Dr. Taatjes
described the therapy he was conducting, but did not specify the
number or duration of treatments. He simply indicated decreasing
frequency as the patients status improves.
Houston NANA arranged for a panel of doctors to conduct
an independent medical evaluation (IME) on March 19, 2002. The
panel consisted of a chiropractor, Dr. Willat, and an orthopedic
surgeon, Dr. Ramsey. Both doctors examined Burke and reviewed
his medical records. Both agreed that Burke was medically
stable, at least with respect to his spinal injuries. Dr. Ramsey
diagnosed Burke with mild right carpal tunnel syndrome and
indicated that Burkes work had caused his neck, back, and carpal
tunnel problems on a more-probable-than-not basis. In Dr.
Ramseys opinion, Burke had a slight permanent partial impairment
but could return to his work as a pipe fitter as long as he was
not required to use vibrating equipment on a sustained basis
because of the carpal tunnel problems. Dr. Ramsey rated Burke as
having a two percent whole person permanent impairment as a
result of the carpal tunnel syndrome. Dr. Ramsey thought that
Burke might need future medical care for his carpal tunnel
syndrome, although he did not see a need for immediate medical
care. Both Drs. Ramsey and Willat felt that further passive
chiropractic treatments like the ones Burke was receiving from
Dr. Taatjes were not necessary.
After the IME reports noted that Burke might have
carpal tunnel syndrome, Dr. Taatjes referred Burke to a
neurosurgeon, Dr. Guy Corkill. Dr. Taatjes evidently believed
that the hand complaints were related to Burkes neck injuries and
wanted Dr. Corkill to identify the reason for the continuing
pain. Dr. Corkill examined Burke on May 28, 2002, diagnosed
cervical disk disease, and referred Burke to Dr. Marcia Luisi, a
specialist in physical medicine and rehabilitation, for
electrodiagnostic studies. Dr. Luisi examined Burke on June 18,
2002, and performed nerve conduction studies to determine the
cause of his right hand complaints. Dr. Luisi concluded that
Burke had moderate right carpal tunnel syndrome and that the
electrodiagnostic studies showed no indication of cervical
radiculopathy. Following Dr. Luisis report, Dr. Corkill
recommended that Burke get a wrist splint. On August 23, 2002,
Dr. Corkill advised Burke to have surgery for his carpal tunnel
syndrome. Dr. James Glynn, an orthopedic surgeon, evaluated
Burke on October 2, 2002, and recommended right carpal tunnel
release. Burke had the surgery on November 18, 2002.
Dr. Taatjes referred Burke to Dr. Don Davis, a
chiropractic neurologist, for a permanent and stationary
evaluation on September 19, 2002. Based on his examination of
Burke and his review of the medical records, Dr. Davis believed
that Burke was permanent and stationary, except for his right
hand. He stated that in his opinion, Burkes chiropractic
treatment up to that time had been appropriate and should
continue on an exacerbation basis. Dr. Davis did not feel that
Burke could return to his work as a pipe fitter, noting
restrictions on his ability to bend, lift, carry, push, pull, and
squat. Dr. Taatjes adopted the report as his own.
Houston NANA filed a notice of controversion on May 3,
2002, based on the IME reports. It controverted temporary total
disability (TTD) benefits after May 1, 2002, and all further
chiropractic care and physical therapy. The controversion noted
that the IME doctors had determined that Burke was medically
stable as of March 19, 2002; it also stated that medical care for
Burkes right carpal tunnel condition as outlined in Dr. Ramseys
EME report would be covered. A copy of the controversion notice
was sent to Dr. Taatjes.
Burke filed a workers compensation claim on June 26,
2002. In his claim, he requested TTD benefits from May 2, 2002
through medical stability, permanent partial impairment benefits,
medical costs related to Dr. Taatjess care, transportation costs,
penalties, interest, and attorneys fees. Houston NANA filed its
answer to the claim on July 15, 2002.
Burke requested that the Alaska Workers Compensation
Board (the board) order a second independent medical evaluation
(SIME) to address issues of treatment, functional capacity, and
medical stability. Houston NANA agreed that an SIME was
appropriate in Burkes case, so the board ordered one. Two SIME
physicians evaluated Burke: Dr. Marvin Bloom, an orthopedic
surgeon, and Dr. Scott Calzaretta, a chiropractor. Dr. Bloom
stated that Burke would not improve further without cervical
fusion surgery and that even with neck surgery, Burke would
likely not be able to return to his former work as a pipe fitter.
Dr. Bloom did not feel that further chiropractic treatment was
indicated; he believed that Burke was medically stable as of
December 2002. Dr. Bloom rated Burke as having an eight percent
whole person impairment related to his spinal injuries. He did
not specifically discuss the carpal tunnel syndrome in the
conclusions in his report.
Dr. Calzaretta thought that limited chiropractic
treatment was still appropriate in Burkes case but that the
frequency of treatment needed to be decreased to one to two times
a month rather than two to three times a week. Dr. Calzaretta
agreed with Dr. Willat that Burke was medically stable with
respect to his spinal injuries as of March 19, 2002. Dr.
Calzaretta felt that Burke could return to work as a pipe fitter
as long as he was precluded from repetitive pneumatic activity
with his right hand. He also thought that Burke should lift no
more than forty pounds overhead to prevent possible injuries to
his neck and back.
The board held a hearing on Burkes claim on September
4, 2003. Burke testified in person, and Dr. Taatjes testified
telephonically. Burke argued that his treatment with Dr. Taatjes
was reasonable and necessary, even though it was in excess of the
treatment limits, because he had multiple injuries but continued
to work and because the chiropractic care helped him avoid
surgery and expensive pain medication. He also asserted that
Houston NANA had waived its argument that the treatment plan was
excessive because it did not specifically object to the form of
the plan in its controversion notice: The notice stated only
that the care was not necessary. Burke also contended that his
carpal tunnel syndrome was not medically stable from May 2, 2002
through November 17, 2002, and that he should receive TTD
benefits for that period of time.
Houston NANA called Burkes carpal tunnel argument a red
herring and asserted that Burke was medically stable as of March
19, 2002. Houston NANA also argued that Burke had not met his
burden of showing that his chiropractic care was reasonable and
necessary, especially in light of the treatment standards set out
in board regulations. In addition, it argued that Dr. Taatjess
treatment plans were inadequate in that they did not specify the
frequency or duration of treatment.
The board issued its decision on October 3, 2003. It
found that Burke was medically stable as of March 19, 2002, and
was therefore not eligible for TTD benefits from March 19, 2002,
until November 19, 2002, the day after he had surgery for right
carpal tunnel syndrome. The board stated that, in accordance
with Grove v. Alaska Construction and Erectors,4 it did not have
the authority to award medical benefits in excess of the
regulatory standards because Dr. Taatjes had not filed a
treatment plan that conformed to the requirements of AS
23.30.095(c).5 The board rejected Burkes argument that Houston
NANA had waived its objection to the form of the treatment plan
when it controverted chiropractic treatment. The board awarded
payment for one chiropractor visit per month from May 2002 to
November 2002 because Drs. Calzaretta and Davis thought that some
chiropractic care was still indicated and one visit per month was
within the regulatory standards. It denied Burkes request for
reimbursement of his costs to attend the hearing, finding that
his in-person testimony was not necessary for the limited issue
on which he prevailed. The board also decided that only a
limited fee award was appropriate and ordered Burkes attorney to
submit another affidavit, segregating the time he spent working
on the chiropractic care issue. Burke filed a timely appeal in
the superior court, alleging numerous errors in the boards
decision.
Before the board issued a decision on the TTD claim,
Burke, through his attorney, wrote the Reemployment Benefits
Administrator to request a reemployment eligibility evaluation.
Acknowledging that the request was late, Burke set out unusual
and extenuating circumstances to justify his tardy application.
The unusual and extenuating circumstances were that (1) Burke
suffered a series of injuries, not just a single injury, in his
employment; (2) time loss benefits did not begin until November
19, 2001, more than thirty days after the last injury; (3) Burke
thought he would be able to return to his work as a pipe fitter;
and (4) no doctor had predicted within the first ninety days that
Burke would not be able to return to his job at the time of
injury. Burke also urged the RBA to reject any argument that the
request for an eligibility evaluation was untimely under the
boards discovery rule because, according to Burke, the plain
meaning of the statute only required the RBA to make a
determination of unusual and extenuating circumstances excusing a
late-filed request. In response to Burkes request, Houston NANA
wrote the RBA, arguing that Burkes request should be denied. On
November 12, 2003, the RBA explained his interpretation of the
statutory deadlines, determined that Burke had unusual and
extenuating circumstances that justified his late request, and
decided that Burke was entitled to an evaluation for reemployment
benefits. The RBA noted that in the first ninety days after
giving his employer notice of his injury, there was no indication
that rehabilitation might be needed. Houston NANA appealed the
RBAs decision to the board. The board held a hearing on the
reemployment benefits issue on March 10, 2004.
In its April 14, 2004 decision on the reemployment
question, the board decided that the RBA had abused his
discretion in finding that Burke was entitled to an eligibility
evaluation. The board declared that it had a long history of
applying a discovery rule in considering the statutory ninety-day
deadline for applying for a reemployment eligibility evaluation.
Under the boards discovery rule, the employee has ninety days
from the date he has knowledge of his need for retraining to
apply for an eligibility evaluation. The board determined that
Burke had notice that he would need retraining at the latest on
February 25, 2003, the date of Dr. Blooms SIME report. Because
Burkes request was made in September, it was deemed untimely; the
board therefore reversed the RBAs decision and denied and
dismissed Burkes request for an eligibility evaluation. The
board did not review the RBAs determination that Burke had
unusual and extenuating circumstances excusing his late-filed
request, nor did it make any findings related to unusual and
extenuating circumstances.
Rather than file a second appeal, Burke asked the
superior court to amend his points on appeal to include the
issues raised in the boards reemployment benefits decision. The
court did so after receiving no opposition from Houston NANA.
The superior court affirmed the boards decision in all respects,
except for its award of attorneys fees; the court remanded the
case to the board for a redetermination of the fee award. The
parties subsequently settled the fee issue, and the board
approved the settlement. Burke then moved the superior court for
entry of a final judgment; this appeal followed.
III. STANDARD OF REVIEW
In an appeal of a decision of a superior court acting
as an intermediate court of appeal in a workers compensation case
we independently review the boards decision.6 Factual findings
are reviewed to see if they are supported by substantial
evidence.7 Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. 8
For legal questions involving agency expertise or fundamental
policy questions, we apply the reasonable basis standard and
defer to the agency if its interpretation is reasonable.9 For
legal questions involving no agency expertise, we substitute our
judgment and apply the rule of law that is most persuasive in
light of precedent, reason, and policy.10 We review an agencys
application of its regulation to the facts to determine whether
the agencys decision was arbitrary, unreasonable, or an abuse of
discretion.11 We will find an abuse of discretion when we are
left with the definite and firm conviction that a mistake has
been made.12
IV. DISCUSSION
A. Burke Is Not Entitled to Chiropractic Care that Exceeds
the Regulatory Standards.
Burke argues that the board erred when it ordered
Houston NANA to pay for only limited chiropractic treatment. He
asserts that (1) Dr. Taatjes filed a treatment plan; (2) the
chiropractic care he received was reasonable and necessary; and
(3) Houston NANA was barred by estoppel or waiver from arguing
that the treatment plan was in any way deficient. Houston NANA
responds that the board is legally precluded from awarding
benefits in excess of the regulatory treatment standards unless
certain conditions are met, and, because Dr. Taatjes did not meet
the conditions, it cannot be made to pay for the treatments.
Specifically, Houston NANA asserts that Dr. Taatjes was required
to file a treatment plan that conformed with the requirements
of AS 23.30.095(c) within fourteen days of the beginning of his
treatment of Burke; because his treatment plan did not conform to
the statutory requirements, Houston NANA cannot be made to pay
for treatments in excess of the regulatory standards. It also
argues that the frequency standards are not a defense or
statutory right that may be waived by an employer.
Alaska Statute 23.30.095(c) contains two provisions
detailing the information a health care provider must supply in
order to receive payment for continuing and multiple treatments
of a similar nature. First, the health care provider or the
employee must provide notice of injury and treatment to the board
and the employer within fourteen days of commencement of the
treatment.13 Next, if a claim is made for a course of continuing
and multiple treatments that exceeds the standard treatment
frequency, the health care provider is required to give a more
detailed treatment plan to both the employer and the employee.14
The treatment plan must include objectives, modalities, frequency
of treatments, and reasons for the frequency of treatments.15 The
statute further specifies that, in the event a treatment plan is
not furnished, neither the employer nor the employee can be made
to pay for treatments that exceed the frequency standards.16
Finally, the statute requires the board to adopt regulations
establishing standards for frequency of treatment.17
The board has adopted a regulation establishing
frequency standards that apply to all continuing treatments.18
This regulation provides, in part:
(f) If an injury occurs on or after
July 1, 1988, and requires continuing and
multiple treatments of a similar nature, the
standards for payment for frequency of
outpatient treatment for the injury will be
as follows. Except as provided in (h) of
this section, payment for a course of
treatment for the injury may not exceed more
than three treatments per week for the first
month, two treatments per week for the second
and third months, one treatment per week for
the fourth and fifth months, and one
treatment per month for the sixth through
twelfth months. Upon request, and in
accordance with AS 23.30.095(c), the board
will, in its discretion, approve payment for
more frequent treatments.
(g) The board will, in its discretion,
require the employer to pay for treatments
that exceed the frequency standards in (f) of
this section only if the board finds that
(1) the written treatment plan was
given to the employer and employee within 14
days after treatments began;
(2) the treatments improved or are
likely to improve the employees conditions;
and
(3) a preponderance of the medical
evidence supports a conclusion that the
boards frequency standards are unreasonable
considering the nature of the employees
injury.[19]
1. Dr. Taatjes failed to file an adequate treatment
plan.
The parties do not dispute that Dr. Taatjess
chiropractic treatments were in excess of the regulatory
standards and that he filed some type of treatment plan. The
board refused to order Houston NANA to pay for the excess
treatments because Dr. Taatjes did not file a treatment plan
pursuant to AS 23.30.095. Burke claims that Dr. Taatjes filed a
treatment plan that substantially complied with the requirements
of AS 23.30.095(c), but he does not elaborate how the forms that
Dr. Taatjes filed complied with the statute.
We agree with Houston NANA that Dr. Taatjess filings do
not meet the requirements of AS 23.30.095(c). Dr. Taatjes filed
a California workers compensation form within fourteen days of
beginning his treatment of Burke; this form appears to meet the
first requirement of AS 23.30.095(c), that the health care
provider furnish notice to the board and employer that he will be
providing medical care or treatment requiring continuing and
multiple treatments of a similar nature. But because Dr. Taatjes
treated Burke on a more frequent basis than permitted under the
applicable regulation, Dr. Taatjes was additionally required to
provide a treatment plan to both Burke and Houston NANA that
included objectives, modalities, frequency of treatments, and
reasons for the frequency of treatments.20 Dr. Taatjes failed to
do this.
Dr. Taatjess first filing did not suggest that Dr.
Taatjes would be treating Burke more frequently than the
regulatory standards: It stated that treatment would consist of
thirty visits over a twelve- to sixteen-week period. The initial
notice described the modalities of treatment but not the
objectives. After the initial notice, Dr. Taatjes filed periodic
progress reports on forms from the California Division of Workers
Compensation. Had he supplied all of the information requested
on the forms, they might have contained sufficient information to
be considered conforming: The forms ask the provider to specify
the methods, frequency, and duration of planned treatments.21 But
Dr. Taatjes did not supply all of the requested information;
specifically, he did not set out the frequency or duration of the
planned treatments. The most he said about frequency of
treatment was decreasing frequency as the patients status
improves. Although Burke presented testimony that Dr. Taatjes
was not aware of the requirement that he supply a detailed
treatment plan, the legislature placed the burden on a health
care provider to provide adequate information if he is to be
reimbursed for treatments in excess of regulatory standards.22
Burke implicitly argues that it would be inequitable to
require Dr. Taatjes to conform to Alaskas statutory requirements
because he had no way of knowing that Alaska had limits on the
number of treatments. This argument is unavailing, however,
because Dr. Taatjes had avenues available to him to comply with
the statutory requirements. Although Dr. Taatjes practices in
California, the record reflects that his office contacted the
Alaska Workers Compensation Board at one point about the
possibility of a lien. In addition, his office apparently
discussed possible differences between Alaska and California law
with the compensation carrier. Furthermore, Dr. Taatjes could
simply have completed the California progress reports completely
and accurately.
Burke argues that the record does not contain
substantial evidence to support the boards finding that there was
no dispute about whether a conforming treatment plan was
provided, because he disputed the adequacy of the treatment plan.
Burke has never articulated how Dr. Taatjess filings conformed to
or even substantially complied with the statutory requirements
for a treatment plan. Before the board, he only argued that
Houston NANA was estopped from claiming that the treatment plan
was nonconforming because it had not raised that issue in its
notice of controversion. Substantial evidence thus supports the
boards conclusion that it was undisputed that Houston NANA did
not receive a conforming plan within fourteen days of treatment.
2. Houston NANA is not estopped from raising the
adequacy of the treatment plan.
Burke also argues that Houston NANA should be estopped
from raising the issue of the noncompliance of Dr. Taatjess
treatment plan because it did not explicitly do so in its notice
of controversion. He contends that if Houston NANA had told Dr.
Taatjes of the deficiencies in the plan, Dr. Taatjes could have
stopped or modified his treatments or changed his treatment plan
to conform to NANAs perceived requirements. Houston NANA
responds that failure to follow the statutory requirements for
the treatment plan cannot be waived, citing Grove v. Alaska
Construction and Erectors.23
The board relied on Grove to deny Burkes claim for
chiropractic treatment in excess of the frequency standards. It
found that the frequency standards in the regulation could not be
waived unless the treatment plan complied with the terms
of AS 23.30.095(c), stating that, [a]s in Grove, it has not been
disputed that the employer was not provided with a treatment plan
pursuant to AS 23.30.095 within fourteen days of the treatment.
Burkes argument is similar to the one we rejected in
Grove. There, we explicitly rejected the notion that the
employer has the burden of objecting to the frequency of an
employees medical treatments.24 Rather, we determined that the
legislature placed the burden on the health care provider to
provide a conforming treatment plan if the provider wanted to be
paid for visits in excess of the treatment standards.25 We have
also held that because the requirement is statutory, the board
cannot waive the prerequisite that a treatment plan be furnished
within fourteen days of commencement of treatment.26
Although Burke argues that the board had express power
to award treatment that exceeded the frequency standards, the
boards power is limited to situations in which the statutory
requirements of filing a conforming treatment plan are met. To
accept Burkes argument that Houston NANA had the duty to tell Dr.
Taatjes that the treatment plans did not conform to the statute
would place the burden on the employer to object to the frequency
of an employees medical treatments; we explicitly rejected this
construction of the statute in Grove.27 Although Dr. Taatjes may
have filed some sort of plan, it was not a plan that met the
requirements of the statute. Because the statute requires a
conforming plan, filing a nonconforming plan does not satisfy the
statute.28
3. Rebutting the presumption of compensability
Burke also argues that he is entitled to excess
chiropractic care because Houston NANA did not rebut the
presumption of compensability. As Burke correctly notes, the
presumption of compensability applies to every element of a
factual determination.29 He does not, however, explain how the
presumption analysis interacts with the frequency standards.
The presumption analysis does not apply to every
possible issue in a workers compensation case. We have
previously held the presumption of compensability inapplicable
when evaluating a reemployment plan because the parties agreed
that the employees claim was covered by the provisions of the
workers compensation statute and applying the presumption did not
promote the goals of encouraging coverage and prompt benefit
payment.30
Here, the board did not use the presumption analysis in
evaluating Burkes chiropractic care claim. The presumption
analysis might apply to the question whether any chiropractic
care was necessary because that would raise the issue whether
part of the claim was covered at all. It could also apply if a
conforming treatment plan had been filed because the regulation
related to excess treatment requires a factual determination
about the efficacy of the treatment.31 But we cannot see how the
presumption analysis can be used to defeat the explicit statutory
provision about frequency of treatment.
Even if the presumption analysis applied, Houston NANA
rebutted the presumption of compensability with Dr. Willats
report, which stated that as of March 19, 2002, Burke no longer
benefitted from passive chiropractic care of the type he was
receiving from Dr. Taatjes. It was then incumbent on Burke to
prove that further treatment was reasonable and necessary and
that he was entitled to treatment in excess of the frequency
standards. The board decided that Burke had shown that further
chiropractic care was reasonable and necessary, but it limited
the frequency of care to the number of visits authorized by
regulation because Dr. Taatjes had not filed a treatment plan
that conformed to the requirements of AS 23.30.095(c). The
boards decision with respect to chiropractic care was correct in
all respects.
B. Substantial Evidence Does Not Support the Boards Denial
of TTD Benefits from March 19, 2002 Through November
19, 2002.
Burke contends that he is entitled to TTD benefits from
March 19, 2002, through November 18, 2002 because his carpal
tunnel syndrome was not medically stable as of March 19, 2002,
the date that the board determined he had reached medical
stability. He alleges that substantial evidence does not support
the boards finding of medical stability because evidence in the
record shows that Burke was in fact being treated for his carpal
tunnel syndrome prior to his carpal tunnel release surgery. In
addition, Burke points out that his case is similar to Thoeni v.
Consumer Electronic Services32 in that by the time the board
issued its decision, it knew that the predictive opinions on
which it relied to find him medically stable were wrong.33
Houston NANA maintains that substantial evidence in the record
supports the boards decision. It points out that both IME
physicians stated that Burke was medically stable as of March 19,
2002, and that one of the SIME physicians shared that opinion.
It also argues that until the time of surgery, Burke was not
being actively treated for carpal tunnel syndrome and that in any
event, he was not disabled because of the carpal tunnel syndrome.
In analyzing Burkes claim for TTD, the board found that
Burke was entitled to the presumption of compensability that he
was still temporarily totally disabled by virtue of his testimony
and that of Drs. Davis and Corkill. It then found that Houston
NANA had rebutted the presumption through the opinions of Drs.
Calzaretta, Willat, and Ramsey that Burke was medically stable as
of March 19, 2002.
The board then decided that Burke had not proven his
claim. It rejected his argument that his carpal tunnel syndrome
was not stable and was disabling from March 19 until his surgery.
Its decision was based on two findings: (1) prior to the carpal
tunnel surgery, no treatment was being recommended for the right
wrist, and (2) there was insufficient evidence that the employee
was precluded from working . . . due to the condition of his
wrist. The board also stated that the medical evidence in the
record regarding the employees wrist indicated that the symptoms
were subsiding and that future treatment would only be
appropriate if the wrist deteriorated. The board determined that
Burke was medically stable as of March 19, 2002, based on the
opinions of Drs. Calzaretta, Willat, Ramsey, and Bloom and
concluded that Houston NANA had overpaid TTD benefits from March
19, 2002, through May 1, 2002.
Because Burke had been receiving TTD benefits, his
disability presumptively continued, and Houston NANA had the
burden of producing substantial evidence that Burke was no longer
disabled.34 We held in Thoeni that a prediction of medical
stability that turns out to be incorrect cannot provide
substantial evidence to rebut the presumption.35 In Burkes case,
as in Thoeni, the boards determination of medical stability was
based on opinions that proved to be incorrect. When the board
made its decision in Burkes case, it knew that he had in fact
undergone the testing and treatment that Houston NANAs expert
recommended for treatment of his carpal tunnel syndrome.
Houston NANA never controverted this treatment and did not
contend that it was unreasonable or medically unnecessary.36
Because of this, the opinions of Drs. Ramsey and Willat could not
constitute substantial evidence on which the board could rely to
find that Burke was medically stable.
The board also relied on the opinions of Drs. Bloom and
Calzaretta in its decision. Dr. Bloom expressly stated that, in
his opinion, Burke was medically stable as of December 2002.
Although Dr. Bloom also said that Burke did not derive any
benefit from chiropractic care after March 19, 2002, Burkes
chiropractic care was unrelated to his carpal tunnel syndrome.
The section of Dr. Calzarettas report about medical stability
deals only with Burkes spinal complaints, not his carpal tunnel
syndrome, and does not constitute substantial evidence to rebut
the presumption that Burkes wrist was not medically stable. Dr.
Calzaretta describes Burkes carpal tunnel syndrome as resolving,
in contrast to his spinal injuries, which he describes as
maximally improved.
We also hold that Houston NANA did not present
substantial evidence to rebut the presumption that Burke was
unable to work.37 The only evidence before the board that might
have suggested that Burke could work were the opinions of Drs.
Ramsey and Calzaretta. But both doctors placed restrictions on
Burkes work activities, and the restrictions were directly
related to his carpal tunnel syndrome.38 Also, carpal tunnel
complaints, along with neck problems, prompted Burke to seek
medical attention in Fairbanks in 2001 and caused Dr. Ramsey to
give Burke a permanent partial impairment rating. Houston NANA
presented no evidence that Burke was able to earn the wages which
the employee was receiving at the time of injury in the same or
any other employment.39 Because Houston NANA failed to present
substantial evidence to rebut the presumption that Burke
continued to be disabled, the board erred in denying his request
for TTD benefits.
C. The Board Abused Its Discretion in Denying Burkes
Travel Costs.
Burke argues that the board abused its discretion in
failing to award him his costs for traveling to Anchorage to
attend his workers compensation hearing in person. He asserts
that because the board alone determines witness credibility, in-
person testimony can be critical to a claimants case and claims
that there is no way to know in advance of a hearing whether the
board will consider the presence of an applicant necessary. He
points out the risks that a claimant takes in not appearing in
person, such as production of surreptitiously recorded videos.
Houston NANA responds that the issues in this case were narrow
and related to medical testimony, so Burke should have known
before the hearing that his credibility was not an issue.
The board can award the necessary and reasonable costs
relating to the preparation and presentation of the issues upon
which the applicant prevailed at the hearing on the claim.40
Included in the costs that the board can award are reasonable
travel costs to attend a hearing if the board finds that the
applicants attendance is necessary.41 We agree with Burke that it
is difficult for a claimant to know in advance whether his
credibility will be at issue and his presence at the hearing
necessary. Houston NANA contends that the issues in this case
were only related to medical testimony, but the issues the board
faced went beyond expert testimony. The board made findings
about Burkes ability to continue his work as a pipe fitter, which
related to the issue of temporary disability and presumably
required testimony from Burke about his work duties and
limitations. In addition, had the board determined that Dr.
Taatjes had filed an adequate treatment plan, it could have
considered Burkes testimony about the efficacy of chiropractic
care in deciding whether treatments in excess of the regulatory
standards were justified.42 Also, Burke has now prevailed on his
temporary disability claim and therefore is eligible for the
award of necessary and reasonable costs.43 For these reasons, the
board abused its discretion in failing to award Burke his travel
costs to attend the hearing in person.
D. The Board Erred in Reversing the Reemployment Benefit
Administrators Decision.
Burke also appeals the boards second decision, in which
the board reversed the determination of the Reemployment Benefit
Administrator that Burke was entitled to a reemployment
eligibility evaluation. Burke maintains that the plain meaning
of 8 AAC 45.520 and former AS 23.30.041(c)44 entitle him to an
evaluation and that the boards imposition of a discovery rule45 is
invalid. He also contends that the board failed in its duty to
advise him how to pursue his rights and denied him due process
and equal protection.
Houston NANA responds that the discovery rule is a
reasonable interpretation of the workers compensation statute
because it furthers the statutes purpose of providing fair and
prompt resolution of compensation cases. It asserts that
substantial evidence supports the boards determination that Burke
knew or should have known that he would not be able to return to
his work as a pipe fitter by February 25, 2003, and argues that
no unusual or extenuating circumstances existed under the
regulation to excuse Burkes subsequent late filing.
The main issue Burke raises is the application of the
following statute and regulation to his case. Former AS
23.30.041(c) provided:
If an employee suffers a compensable injury
that may permanently preclude an employees
return to the employees occupation at the
time of injury, the employee or employer may
request an eligibility evaluation for
reemployment benefits. The employee shall
request an eligibility evaluation within 90
days after the employee gives the employer
notice of injury unless the administrator
determines that the employee has an unusual
and extenuating circumstance that prevents
the employee from making a timely request.[46]
The board adopted a regulation, which became effective
July 2, 1998, interpreting unusual and extenuating circumstance.47
The regulation provides:
(a) An employee requesting an
eligibility evaluation for reemployment
benefits more than 90 days after giving the
employer notice of the injury must submit to
the administrator
(1) a written request for the evaluation;
(2) a doctors prediction that the
injury may permanently preclude the employee
from returning to the job at the time of
injury; and
(3) a written statement explaining
the unusual and extenuating circumstances
that prevented the employee from timely
requesting the eligibility evaluation.
(b) Within 30 days after receiving the
information required under (a) of this
section, the administrator will notify the
parties, by certified mail, whether the
employee had an unusual and extenuating
circumstance that prevented the employee from
making a timely request for an eligibility
evaluation. An unusual and extenuating
circumstance exists only if the administrator
determines that within the first 90 days
after the employee gave the employer notice
of the injury
(1) a doctor failed to predict
that the employee may be permanently
precluded from returning to the job at the
time of injury;
(2) the employee did not know that
a doctor predicted the employee may be
permanently precluded from returning to the
job at the time of injury;
(3) the employer accommodated the
employees limitation and continued to employ
the employee;
(4) the employee continued to be
employed;
(5) the compensability of the
injury was controverted and compensability
was not resolved; or
(6) the employees injury was so
severe that the employee was physically or
mentally prevented from requesting an
eligibility evaluation.
(c) Within 10 days after the decision,
either party may seek a review of the
decision by requesting a hearing under
AS 23.30.110.[48]
The board adopted a regulation detailing how an
employee should request a reemployment eligibility evaluation at
the same time it promulgated the regulation defining unusual and
extenuating circumstances.49 This regulation, 8 Alaska
Administrative Code 45.510, provides in relevant part:
(a) For injuries occurring on or after
July 1, 1988, an employee or an employer may
request an eligibility evaluation for
reemployment benefits. The request must be
in writing, complete in accordance with (b)
of this section, and submitted to the
administrator.
(b) The administrator will consider a
written request for an eligibility evaluation
for reemployment benefits if the
compensability of the injury has not been
controverted and if the request is submitted
together with
(1) an explanation of the unusual
and extenuating circumstances, as defined in
8 AAC 45.520, for a request that is made more
than 90 days after the date the employee gave
the employer notice of the injury; and
(2) a physicians prediction that
the injury may permanently preclude the
employee from returning to the job at time of
injury.[50]
Burke did everything that was required by the new
regulations. His request for an eligibility evaluation was
submitted more than ninety days after he gave notice of his
injury. Accordingly, he submitted a written request for an
evaluation, a doctors prediction that his work-related injury
would permanently preclude him from returning to his work as a
pipe fitter, and a statement explaining the unusual and
extenuating circumstances that prevented him from making a timely
request for an eligibility evaluation. No one argues that by
January 28, 2002 ninety days after Burke signed the notice of
injury a doctor had predicted that Burke would be unable to
return to his job at the time of injury. Indeed, Dr. Taatjes
predicted on March 15, 2002, that Burke would be released to
working status by April 15, 2002. But instead of following its
regulations, the board looked back to a prior period to find a
rule that barred Burkes request.
Before the two new regulations took effect in 1998, the
board had developed through adjudication a discovery rule to be
used in considering reemployment eligibility evaluation requests.51
Under the boards discovery rule, an employee who failed to
request a reemployment eligibility evaluation within ninety days
of providing notice of the injury to the employer as required by
former AS 23.30.041(c) was required to request the evaluation
within ninety days of the date the employee knew or should have
known that he might not be able to return to the occupation at
the time of injury.52 This case presents two questions: (1)
whether the regulations adopted in 1998, which did not explicitly
contain a discovery rule, should be read as continuing the rule
despite their silence, and, if not, (2) whether, following the
adoption of the regulations, the board had the power to impose a
discovery rule by adjudication and thereby hold that Burkes
request was untimely. We conclude that the answer in both
instances is no.
1. Whether the 1998 regulations, which did not
explicitly contain a discovery rule, should be
read as continuing the rule despite their silence
When the board promulgated its regulations interpreting
former AS 23.30.041(c), it codified its prior decisions about
what constituted an unusual and extenuating circumstance.53
Neither regulation mentions the discovery rule.54 The conflict
between the previously-imposed discovery rule and the proposed
regulation interpreting unusual and extenuating circumstances was
brought up in public comments about the regulation: A public
commenter, a workers compensation attorney, filed a comment
noting that the proposed regulation was a departure from board
case law imposing a discovery rule and raised the concern that
the regulation would leave open the amount of time an injured
employee may request reemployment benefits.55 The board did not
change the text of the regulation in response to the comment.56
From this there is at least a suggestion that the board declined
to continue, by means of its rulemaking authority, the discovery
rule it had previously adopted through adjudication. The boards
consideration of the discovery rule at the time it promulgated
the regulations further persuades us that the board must use
rulemaking rather than adjudication to effectuate the
requirements that an employee must meet in order to request a
reemployment eligibility evaluation under former AS 23.30.041(c).57
2. Whether the board had the power, in the face of
its decision to adopt new regulations that did not
include a discovery rule, to impose a discovery
rule by adjudication
Burke asserts that the board cannot by adjudication add
requirements to the law that neither the legislature nor the
executive branch in its rule-making power chose to add to the Act
or regulations, respectively. We agree: If the board wished to
add to the deadlines it explicitly set in the regulations via
adoption of a discovery rule it was required to do so by
regulation.58
We have previously held that an administrative agency
can set and interpret policy using adjudication instead of
rulemaking, absent statutory restrictions and due process
limitations,59 and noted that the board has broad powers to
administer the Alaska
Workers Compensation Act, including the authority to interpret
statutes.60 But the boards power is not unlimited. Alaska law
requires an agency to follow certain procedures, including public
notice and an opportunity for public comment, before it can
supplement or amend a regulation.61 Alaska Statute
44.62.640(a)(3) defines regulation to include every rule,
regulation, order, or standard of general application or the
amendment, supplement, or revision of a rule, regulation, order,
or standard adopted by a state agency to implement, interpret, or
make specific the law enforced or administered by [the agency].
(Emphasis added.)
Whether an agency action is a regulation is a question
of law that does not involve agency expertise, so we apply our
independent judgment.62 We have previously addressed the issue
whether an agency action is an interpretation or an amendment of
a regulation.63 In making this determination, we have looked at a
variety of factors. We have compared the agency action with the
statutory indicia of a regulation, including whether the action
implements, interprets or makes specific the law enforced or
administered by the state agency and affects the public or is
used by the agency in dealing with the public.64 Noting that many
agency actions that are not regulations can affect the public, we
have looked at the distinction drawn by the Court of Appeals for
the District of Columbia between internal agency practices, which
do not require notice and comment rulemaking, and regulations,
which do. That court identified the critical feature of an
internal agency practice as agency actions that do not themselves
alter the rights or interests of the parties, although [they] may
alter the manner in which the parties present themselves or their
viewpoints to the agency.65 Finally, we have looked to see if the
agency action provides new requirements or makes the existing
requirements more specific.66
Using these standards, we conclude that the boards
discovery rule is a regulation that amends or supplements 8 AAC
45.510 and 45.520. The discovery rule, according to the board,
implements, interprets, and makes more specific former
AS 23.30.041(c),67 and it clearly affects the public without the
discovery rule, Burkes reemployment eligibility evaluation
request would have been accepted. The discovery rule is also the
type of agency action that alters the rights of the parties: It
works to modify the requirements employees must meet in order to
qualify for an eligibility evaluation under former AS
23.30.041(c). Finally, it changes the requirements for a
reemployment eligibility evaluation request from those set out in
the regulations: With the discovery rule, an employee who is
requesting an evaluation more than ninety days after notice of
injury may no longer satisfy the statutory requirements by
submitting a written request to the Reemployment Benefit
Administrator that is complete in accordance with [8 AAC
45.510(b)].68
The dissent argues that it was reasonable for the board
to interpret its regulation as creating a new ninety-day period
to request reemployment benefits and that it would be
unreasonable to interpret the regulation to allow an unlimited
time to file a request once an extenuating circumstance ended.69
As to the first point, it is true that the board could have
adopted a regulation to provide for a new ninety-day period, but
it did not do so. This is critical, because there is no doubt
that the interpretation given by the board here enforcement of a
discovery rule interprets and makes more specific the former
statute and it does so in a way that alters the rights of the
parties. In these circumstances, an agency must act through rule-
making, not adjudication.70 As to the dissents second argument
that it would be unreasonable to interpret the regulation as
allowing an unlimited time to file a request the legislature in
the former statute set no limit upon requests once unusual and
extenuating circumstances were shown; rather, it gave broad
discretion to the Reemployment Benefit Administrator to consider
the circumstances justifying a late application.71 Here, the
delay was about three months, certainly not an unreasonable
amount of time given the length of time about sixteen months
that passed before it had become evident that Burke would not be
able to return to his former occupation.
The dissent concludes that the boards determination
that the new regulation contained a discovery rule was readily
predictable. But that conclusion ignores that the workers
compensation attorney commenting to the board72 and the
Reemployment Benefits Administrator73 both came to the opposite
conclusion. And even if one had divined that the board might
ignore the legal requirement that it act through rule-making, not
adjudication, when it interprets and makes more specific a
regulation in a way that alters the rights of a party, such
prescience would not justify the boards action.
Because the board chose to establish by regulation the
procedure an applicant for a reemployment eligibility evaluation
must use, it is bound by those regulations unless and until it
repeals or amends the regulation using the proper procedure.74
Administrative agencies are bound by their regulations just as
the public is bound by them.75 If the board wished to apply a
discovery rule to requests that were made after the ninety-day
period defined in the statute but which also met the statutory
excuse of unusual and extenuating circumstances as Burkes
request did in this case it was obligated to promulgate such a
rule under Alaska law. We hold that the discovery rule imposed
in this case is invalid because the board did not adopt it as a
regulation under AS 44.62.010-.950. We therefore reverse the
boards decision that reversed the Reemployment Benefit
Administrators determination finding Burke eligible for a
reemployment eligibility evaluation.76
V. CONCLUSION
Because substantial evidence does not support the
boards conclusion that Burke was not entitled to TTD benefits
from March 19 to November 19, 2002, we REVERSE the boards
decision denying him TTD benefits for that period of time. We
also REVERSE the boards refusal to order reimbursement for Burkes
travel to attend the hearing and its reversal of the Reemployment
Benefit Administrators decision. We AFFIRM the boards decision
in all other respects.
MATTHEWS, Justice, dissenting in part.
Introduction
Todays opinion holds that the board erred when it
decided that the ninety-day period to request an eligibility
evaluation for reemployment benefits starts when an employee
knows or should know that his injury may permanently prevent him
from returning to his job.1 The court reasons that to reach this
conclusion the board would have had to promulgate a regulation
under the Administrative Procedure Act (APA) and could not do so
by interpreting the applicable statute and regulations. I
disagree.
The board concluded that AS 23.30.041(c) required Burke
to request an evaluation within ninety days after the point at
which he reasonably should have known that he needed retraining.
Since Burke knew by February 25, 2003, that he could not return
to his job, and did not request an evaluation until September 11,
2003, 198 days later, the board held that Burkes request was
untimely. The boards conclusion that the statutory ninety-day
deadline began to run anew when Burke knew or should have known
that he needed retraining was consistent with prior board rulings
that knowledge of the need for reemployment benefits re-triggers
the running of the 90 day period to request these benefits. The
board noted that its ruling was necessary in order to give
meaning to the statute in accordance with the purpose of the
legislature. It observed that under the reemployment benefit
administrators (RBA) conflicting interpretation, an employee
could request reemployment benefits years, or decades, after
being advised of the need for retraining.
In my view the boards ruling was correct. Nothing in
the regulations concerning subsection .041(c) undercut the
validity of the boards prior rulings. Burke did not rely upon
the APA which requires agencies to act by promulgating
regulations in certain circumstances. Further, the APA did not
prohibit the board from ruling as it did.
The Discovery Rule
The courts discussion is, for me at least, hard to
follow. One problem lies with the courts use of the term
discovery rule. A discovery rule is a rule relieving a claimant
from compliance with a statutory limitations period where the
claimant reasonably lacks the opportunity to have discovered
sufficient information to file a claim.2 Once the claimant
discovers or should have discovered sufficient information about
the claim, the whole period of limitations is retriggered and
begins to run anew.3 Thus the discovery rule in Alaska has two
parts. What might be called Part A grants relief from a
statutory limitations period, while what might be called Part B
retriggers the limitations period. Both parts are rules of
statutory interpretation. We assume that the legislature would
not wish to impose a deadline on a claimant before the claimant
has discovered his claim. We also assume that once such a
discovery has been made the legislature would want the statutory
deadline to begin to run.4 Confusingly, the court (except in
footnote 45) uses the term discovery rule only to refer to Part
B, the retriggering aspect of the discovery rule.5 It also does
not seem to recognize that the discovery rule is a rule of
presumed legislative intent designed to balance two competing
policies: the basic fairness of insuring a plaintiffs right to
seek relief, and the interests that underlie limitations
periods.6
The Boards Retriggering Ruling Followed Established Law
Under AS 23.30.041(c) employees had ninety days to
apply for an eligibility evaluation unless extenuating
circumstances prevented a timely submission.7 The extenuating
circumstances provision was a type of discovery rule granting
relief from the limitations period thus encompassing what I have
called Part A of the discovery rule. But subsection .041(c),
like other statutes of limitations, said nothing about
retriggering the statutory period. In other words, no Part B was
expressed.
The regulations defined extenuating circumstances to
include cases where the worker was not told by his physician that
he would not be able to return to his job within the ninety-day
period.8 Here, the worker met this extenuating circumstance: he
was not told of his inability to return to work within the ninety-
day period. Rather, he was told nearly sixteen months after the
event. But he did not apply for retraining until more than
ninety days after that. Was his application time-barred? To
answer this question one must interpret the statute and the
regulations. Did the statute and regulations mean that when the
worker received notice and the extenuating circumstance
terminated the worker had a new ninety-day period in which to
apply? Or did they mean that the worker had an indefinite period
in which to apply? Both the statute and the regulations were
silent on this issue.
The board decided that there was a new ninety-day
period. This interpretation was readily predictable. Decisions
of this court have uniformly applied what I have called Part B of
the discovery rule: when conditions excusing late filing of a
claim no longer exist, a new deadline for filing is imposed that
is equal in duration to the legislatively set deadline.9 Prior
decisions of the board, decided both before and after the
regulations became effective, had recognized and applied this
rule to .041(c)s ninety-day deadline.10 As the board stated, the
Board has a long, consistent history of finding that knowledge of
the need for reemployment benefits re-triggers the running of the
90 day period to request these benefits.11
The boards ruling in this case that a new ninety-day
period would begin to run when the extenuating circumstance
terminated was as correct as it was predictable. The regulations
are silent on the question of whether a new deadline will be
imposed. In light of this silence, there was no reason to
believe that the boards prior rulings would not continue to be
effective. Indeed, if the regulations had explicitly stated that
once extenuating circumstances ended, the worker had an unlimited
time to file an application, they probably would have been
invalid12 because they would not have been consistent with the
statutory purpose of requiring applications within a short period
of time.13
For me, this would be the end of the discussion. But
todays opinion holds that any retriggered ninety-day deadline
should be established by regulation. Because it was not, the
opinion holds that the boards ruling is invalid and workers
therefore had an unlimited or indefinite time to apply after
extenuating circumstances terminated.14 I view this holding with
considerable skepticism because its result conflicts with the
legislative intent underlying the ninety-day limit, our own case
law, and the boards case law. The court bases this seemingly
counter-intuitive conclusion on the APA.15 For the following
reasons, I do not think that the APA should guide our decision.
Burke Did Not Raise Any Contention Regarding the Administrative
Procedure Act
Burke did not make any argument before the board, the
superior court, or this court relying on, citing, or even
mentioning the APA. Instead, Burke argued that because the board
in promulgating the regulation did not provide for a renewed
ninety-day deadline, the board did not want such a deadline. In
todays opinion the court states: Burke asserts that the board
cannot by adjudication add requirements to the law that neither
the legislature nor the executive branch in its rule-making power
chose to add to the Act or regulations, respectively. 16 The
full sentence in Burkes brief from which this quote is taken
reads: Neither the RBA nor the board can add requirements to the
law that neither the legislature nor the executive branch in its
rule-making power chose to add to the Act or regulations,
respectively. What Burke means by this statement is that the
board could not hold that a new ninety-day period is triggered
because doing so would be contrary to the intent of the
legislature and the intent of the board; he does not argue that
doing so would be contrary to the provisions of the APA requiring
agencies to act by adopting regulations.17
Because no argument regarding the APAs requirements was
raised, the appellee has not had a fair opportunity to weigh in
on the question of whether the boards ruling should be considered
invalid because it should have been expressed as a regulation.
As already noted, Burke also did not raise the APA contention
before the board or the superior court. Therefore, this court
has not received the benefit of the analysis of the parties, the
board, or the superior court on this point. Under these
circumstances, it seems to me that whether the APA precluded the
board from adjudicatively interpreting the statute and
regulations should properly play no part in this courts
decision.18
The Administrative Procedure Act Was Not Violated
My conclusion that the APA should not be considered in
this case seems especially well justified given the opacity of
the question of under what circumstances the APA may require
rulemaking. In Alyeska Pipeline Service Co. v. State, Department
of Environmental Conservation,19 we recognized the conflict
between the broad language of the APA and the practical
exigencies of agency action:
Although the definition of regulation is
broad, it does not encompass every routine,
predictable interpretation of a statute by an
agency. Nearly every agency action is based,
implicitly or explicitly, on an
interpretation of a statute or regulation
authorizing it to act. A requirement that
each such interpretation be preceded by
rulemaking would result in complete
ossification of the regulatory state. . . .
Although the Administrative Procedure Act may
require rulemaking in cases in which an
agencys interpretation of a statute is
expansive or unforeseeable, or in cases in
which an agency alters its previous
interpretation of a statute, obvious,
commonsense interpretations of statutes do
not require rulemaking.[20]
Todays opinion argues that the APA applies to the
boards interpretation because the boards interpretation is new:
It works to modify the requirements employees must meet in order
to qualify for an eligibility evaluation under former AS
23.30.041(c) and it changes the requirements for a reemployment
eligibility evaluation request from those set out in the
regulations.21 But the boards interpretation was neither new nor
a change. This court has consistently adhered to Part B of the
discovery rule, holding that statutory deadlines spring to life
anew once conditions excusing initial noncompliance with them
have ended.22 There was no reason to suppose that these holdings
would not apply to the ninety-day deadline in AS 23.30.041(c).
The board, indeed, had always applied just such a rule to
subsection .041(c).23 Since the regulations are completely
silent on the subject of the deadline to be imposed after
extenuating circumstances come to an end, there was no reason to
think that the boards prior rulings on that subject would not
apply. And if it were supposed that the regulations signaled a
change from the prior interpretation of subsection .041(c), the
boards rulings in the Gillen and Jerry cases which were decided
under the regulations (Gillen more than three years before the
boards decision in this case) would put an end to any such
notion.24
All of the quoted factors mentioned in Alyeska Pipeline
point to the conclusion that the boards decision in this case was
permissibly made as an adjudication that did not require
rulemaking under the APA. This case does not involve an
expansive or unforeseeable interpretation, nor is it a case in
which an agency had altered its previous interpretation of a
statute.25 Instead, the boards interpretation was in accord with
its prior decisions and was therefore foreseeable.26 Further, in
light of the decisions of this court, the board, and the intent
of the legislature, the boards ruling was also an obvious,
commonsense interpretation[] of the statute and regulations.27
Here, as in Alyeska Pipeline, I would conclude that the agencys
action do[es] not require rulemaking.28
Conclusion
Alaska Statute 23.30.041(c) is a statutory expression
of Part A (relief from a statutory deadline) of the discovery
rule. It is silent as to Part B (retriggering the deadline).
Before and after the adoption of the regulations, the board
interpreted the statute, in accordance with Part B of the
discovery rule, to retrigger the ninety-day deadline once
exigencies had passed. The regulations which concerned relief
but not retriggering did nothing to call this interpretation
into question. Burke did not contend that the APA was violated.
The boards reaffirmation in this case of its longstanding
interpretation of the statute did not, in any event, violate the
APA because the APA does not apply to the foreseeable, common
sense rulings of an agency.
For these reasons, I would affirm the boards ruling.
On the other issues presented by this case, I agree with the
courts opinion.
_______________________________
1 We refer to Houston NANA, L.L.C. and its insurer,
Lumbermans Mutual Casualty Co., collectively as Houston NANA.
2 Burke testified that he filed a report with the safety
department so that a similar accident did not happen to another
worker; he called it a near miss form.
3 Epicondylitis is the inflammation of the epicondyle or
the tissues adjoining the epicondyle of the humerus. Dorlands
Illustrated Medical Dictionary 564 (28th ed. 1994). An
epicondyle is a prominence or projection above the rounded
projection of the bone. Id. at 367, 544, 564. The humerus is
the bone that extends from the shoulder to the elbow. Id. at
779. Tennis elbow is a type of epicondylitis. Id. at 564.
4 948 P.2d 454 (Alaska 1997).
5 AS 23.30.095(c) provides:
A claim for medical or surgical
treatment, or treatment requiring continuing
and multiple treatments of a similar nature
is not valid and enforceable against the
employer unless, within 14 days following
treatment, the physician or health care
provider giving the treatment or the employee
receiving it furnishes to the employer and
the board notice of the injury and treatment,
preferably on a form prescribed by the board.
. . . When a claim is made for a course of
treatment requiring continuing and multiple
treatments of a similar nature, in addition
to the notice, the physician or health care
provider shall furnish a written treatment
plan if the course of treatment will require
more frequent outpatient visits than the
standard treatment frequency for the nature
and degree of the injury and the type of
treatments. The treatment plan shall be
furnished to the employee and the employer
within 14 days after treatment begins. The
treatment plan must include objectives,
modalities, frequency of treatments, and
reasons for the frequency of treatments. If
the treatment plan is not furnished as
required under this subsection, neither the
employer nor the employee may be required to
pay for treatments that exceed the frequency
standard. The board shall adopt regulations
establishing standards for frequency of
treatment.
6 Dougan v. Aurora Elec., Inc., 50 P.3d 789, 793 (Alaska
2002).
7 DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).
8 Id. (quoting Grove, 948 P.2d at 456).
9 DeNuptiis v. Unocal Corp., 63 P.3d 272, 277 (Alaska
2003).
10 Circle De Lumber Co. v. Humphrey, 130 P.3d 941, 946
(Alaska 2006).
11 Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960
(Alaska 1998).
12 See Dougan v. Aurora Elec., Inc., 50 P.3d 789, 793
(Alaska 2002).
13 AS 23.30.095(c).
14 Id.
15 Id.
16 Id.
17 Id.
18 8 Alaska Administrative Code (AAC) 45.082 (2004).
19 8 AAC 45.082(f)(g) (2004).
20 AS 23.30.095(c).
21 The California progress report forms do not ask about
the objective of the treatments, however. AS 23.30.095(c)
requires that a treatment plan contain the objectives of
treatment.
22 See AS 23.30.095(c); see also Grove v. Alaska Constr.
and Erectors, 948 P.2d 454, 457 (Alaska 1997) (The statute is
clear that it is the employees health care provider who must take
steps if the statutory frequency of that treatment is exceeded.).
23 948 P.2d at 454.
24 Id. at 457.
25 Id.; see also Hale v. Anchorage Sch. Dist., 922 P.2d
268, 270 (Alaska 1996) (holding that physical therapist was
required to file a conforming treatment plan within fourteen days
of beginning treatment).
26 Crawford & Co. v. Baker-Withrow, 73 P.3d 1227, 1229
(Alaska 2003) (citing Grove, 948 P.2d at 457).
27 Grove, 948 P.2d at 457.
28 Even if we were to evaluate Burkes estoppel claim on
the merits, it would fail. Estoppel requires an assertion by
word or conduct, reasonable reliance, and resulting prejudice.
Tufco, Inc. v. Pac. Envtl. Corp., 113 P.3d 668, 671 (Alaska
2005). Burke has not clearly identified the assertion on which
he relied, nor has he shown that he was prejudiced. AS
23.30.095(c) provides that neither the employer nor employee can
be made to pay for excess treatments when the health care
provider fails to file a conforming plan.
29 See Sokolowski v. Best W. Golden Lion Hotel, 813 P.2d
286, 292 (Alaska 1991).
30 Rockney v. Boslough Constr. Co., 115 P.3d 1240, 1244
(Alaska 2005).
31 8 AAC 45.082(g) (2004).
32 151 P.3d 1249 (Alaska 2007).
33 Id. at 1255-56.
34 See Grove v. Alaska Constr. and Erectors, 948 P.2d 454,
458 (Alaska 1997) (Once an employee is disabled, the law presumes
that the employees disability continues until the employer
produces substantial evidence to the contrary. (citing Bailey v.
Litwin Corp., 713 P.2d 249, 254 (Alaska 1986))).
35 151 P.3d at 1256.
36 In its notice of controversion, Houston NANA indicated
that it would cover treatment for Burkes carpal tunnel syndrome
as outlined in Dr. Ramseys EME report.
37 It is not clear whether Houston NANA seriously contends
that Burke could in fact work. Its arguments at the board
hearing related only to the issue of medical stability, and its
brief before this court takes inconsistent positions. At one
point in the brief it claims that there is no medical evidence
that Mr. Burke was unable to work because of his mild carpal
tunnel syndrome, while elsewhere in the same brief it states that
there is no dispute . . . regarding the nature or extent of Mr.
Burkes disability.
38 Dr. Calzaretta imposed an additional restriction that
Burke not lift more than forty pounds overhead to prevent any
further neck or back strain.
39 AS 23.30.395(16) (defining disability).
40 8 AAC 45.180(f) (2004).
41 8 AAC 45.180(f)(13) (2004).
42 See 8 AAC 45.082(g)(2) (2004).
43 See 8AAC 45.180(f) (2004).
44 Former AS 23.30.041(c) (1988), amended by ch. 10, 17,
FSSLA 2005.
45 The dissent criticizes this opinions use of the term
discovery rule. But this court uses the term as the parties used
it in their briefs: as shorthand for the judicial interpretation
of a statute of limitations that (1) excuses a failure to act
when a claimant in unaware of facts necessary to appreciate that
he has a claim and then, once such appreciation is gained, (2)
retriggers the running of the limitations period. Burke, in
attacking the boards decision, said this in his opening brief:
The Act contains no discovery rule. The
boards own regulation contains no discovery
rule. Thus, the board was wrong . . . to
adopt a de facto discovery rule against the
injured worker. The RBA was correct because
Mr. Burke met the laws requirements. The
legislature could have included such a
discovery rule in the Act. The lack of it is
evidence the legislature did not want it . .
. .
Burke thus argued that the statute excused his failure to seek an
evaluation within the original ninety-day period under the
circumstances of his case and nowhere contained any requirement
that he act within ninety days of a retriggering event.
Houston NANA, replying to Burkes argument, entitled a
section of its brief, There is a Reasonable Basis for the Boards
Adoption of the Discovery Rule, and mentioned the discovery rule
eight times over the next six pages. Houston NANA in its brief
relied on the retriggering obligation of the discovery rule to
support its position.
46 This statutory scheme putting the burden of requesting
an eligibility evaluation on the worker within narrow time limits
no longer exists: The 2005 amendments to the Alaska Workers
Compensation Act require the Reemployment Benefits Administrator
to order an eligibility evaluation whenever the employee is not
able to return to his or her employment at the time of injury for
a period of ninety consecutive days. Ch. 10, 17, FSSLA 2005.
47 Alaska Administrative Code, Register 146 (July 1998).
48 8 AAC 45.520 (2004).
49 Alaska Administrative Code, Register 146 (July 1998).
50 8 AAC 45.510(a) & (b) (2004).
51 See Harsen v. B & B Farms, AWCB Decision No. 94-0253
(Sept. 30, 1994); see also Waters v. Grace Drilling, AWCB
Decision No. 95-0046 (Feb. 17, 1995). But see Bales v. State,
Dept of Natural Res., AWCB Decision No. 96-0104 at 15-16 n.5
(Mar. 12, 1996) (questioning validity of discovery rule).
52 Waters, AWCB Decision No. 95-0046 at 5-6 (Feb. 17,
1995); Harsen, AWCB Decision No. 94-0253 at 10 (Sept. 30, 1994).
53 Williams v. Municipality of Anchorage, AWCB Decision
No. 98-0273 at 12 (Oct. 30, 1998).
54 See 8 AAC 45.510 and 45.520 (2004), set out supra at 28-
29 and 30.
55 Comment by Theresa Henneman to proposed 8 AAC 45.520,
Department of Labor Proposed Regulations for the Alaska Workers
Compensation Board (Sept. 1997).
56 Compare 8 AAC 45.520 and proposed 8 AAC 45.520,
Department of Labor Proposed Regulations for the Alaska Workers
Compensation Board (Sept. 1997).
57 See Patel v. INS, 638 F.2d 1199, 1204 (9th Cir. 1980)
(holding that agency abused its discretion in adding criterion
through adjudication that it had previously considered and
withdrawn during rulemaking). But see Mehta v. INS, 574 F.2d 701
(2d Cir. 1978) (reaching opposite conclusion).
58 See Jerrel v. State, Dept of Natural Res., 999 P.2d
138, 143-44 (Alaska 2000) (holding that administrative agencies
must comply with AS 44.62 when issuing regulations pursuant to
delegated statutory authority); see also Alaska Ctr. for the
Envt v. State, 80 P.2d 231, 243 (Alaska 2003) (holding that
adoption of standard defining major energy facility did not
amount to regulation requiring formal adoption).
59 Amerada Hess Pipeline Corp. v. Alaska Pub. Util. Commn,
711 P.2d 1170, 1178 (Alaska 1986); see also 1 Richard J. Pierce,
Jr., Administrative Law Treatise 6.9 (4th ed. 2002) (discussing
when courts consider rulemaking necessary); 1 Charles H. Koch,
Jr., Administrative Law and Practice 2.12 [4] (2d ed. 1997)
(discussing required rulemaking).
60 DeNuptiis v. Unocal Corp., 63 P.3d 272, 277 (Alaska
2003); see also Bloom v. Tekton, Inc., 5 P.3d 235, 238 (Alaska
2000) (noting that board had consistently interpreted the workers
compensation act to allow an employee to substitute a physician
in certain circumstances).
61 AS 44.62.190, .200.215.
62 Alaska Ctr. for the Envt v. State, 80 P.3d 231, 243
(Alaska 2003) (citations omitted).
63 Id. at 243-44; see also Jerrel, 999 P.2d at 143-44;
Kachemak Bay Watch, Inc. v. Noah, 935 P.2d 816, 825-26 (Alaska
1997).
64 Jerrel, 999 P.2d at 143 (citations omitted); AS
44.62.640(a)(3).
65 Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir.
1980) (quoted in Kachemak Bay Watch, Inc., 935 P.2d at 825).
AS 44.62.640(a)(3) similarly excludes from the definition of
regulation rules that relate[] only to the internal management of
a state agency.
66 Alaska Ctr. for the Envt, 80 P.3d at 244.
67 Gillen v. Glen Mills Constr., AWCB Decision No. 00-0255
at 7-9 (Dec. 12, 2000).
68 8 AAC 45.510(a) (2004).
69 In fact, the boards opinion does not say that it is
interpreting its regulation at all. Instead, it purports to
interpret the statute, former AS 23.30.041(c), as including a
discovery rule. Its decision in this case does not discuss
application of the regulations to Burkes facts, nor does it
explain why the regulation which conspicuously does not contain
a discovery rule would not apply to him.
70 Jerrel v. State, Dept of Natural Res., 999 P.2d 130,
143 (Alaska 2000); AS 44.62.640(a)(3).
71 Former AS 23.30.041(c).
72 See supra text accompanying n.55.
73 See supra at 11.
74 See Jerrel, 999 P.2d at 143-44; see also Tunik v. Merit
Sys. Prot. Bd., 407 F.3d 1326, 1341 (Fed. Cir. 2005) (concluding
that regulation subject to notice and comment rulemaking cannot
be overturned except through notice and comment rulemaking); Am.
Fedn of Govt Employees, AFL-CIO, Local 3090 v. Fed. Labor
Relations Auth., 777 F.2d 751, 758-60 (D.C. Cir. 1985) (stating
that to repeal or modify regulation, agency must do so through
rulemaking rather than adjudication).
75 Brandon v. State, Dept of Corr., 73 P.3d 1230, 1235
(Alaska 2003); Trs. for Alaska v. Gorsuch, 835 P.2d 1239, 1244
(Alaska 1992); see United States v. Nixon, 418 U.S. 683, 696
(1974) (noting that regulation binds Executive Branch until it is
amended or revoked).
76 Because we uphold the RBAs determination that Burke was
eligible for a reemployment eligibility evaluation (on the ground
that the board failed to adopt the discovery rule as regulation),
it is not necessary for us to reach Burkes alternative arguments
that the board failed in its duty to advise him how to pursue his
rights, that it denied him due process, and that it denied him
equal protection.
1 Slip Op. at 24-36.
2 See, e.g., Cameron v. State, 822 P.2d 1362, 1365
(Alaska 1991) (The discovery rule developed as a means to
mitigate the harshness that can result from the . . . preclusion
of claims where the injury provided insufficient notice of the
cause of action to the plaintiff.).
3 See, e.g., Johns Heating Serv. v. Lamb, 129 P.3d 919,
926 (Alaska 2006); Roach v. Caudle, 954 P.2d 1039, 1041 (Alaska
1998); Cameron, 822 P.2d at 1365-67; Greater Area Inc. v.
Bookman, 657 P.2d 828, 829 (Alaska 1982).
4 See Cameron, 822 P.2d at 1365 n.5 and accompanying
text.
5 See Slip Op. at 24, 25, 29, 30, 31, 33, 34, 35, and 36.
6 Cameron, 822 P.2d at 1365.
7 Former AS 23.30.041(c) provided:
If an employee suffers a compensable
injury that may permanently preclude an
employees return to the employees occupation
at the time of injury, the employee or
employer may request an eligibility
evaluation for reemployment benefits. The
employee shall request an eligibility
evaluation within 90 days after the employee
gives the employer notice of injury unless
the administrator determines the employee has
an unusual and extenuating circumstance that
prevents the employee from making a timely
request. The administrator shall, on a
rotating and geographic basis, select a
rehabilitation specialist from the list
maintained under (b)(6) of this section to
perform the eligibility evaluation.
8 Former 8 AAC 45.520. See Slip Op. at 26-27.
9 See supra note 3.
10 See Jerry v. Chandler Corp., 2004 WL 305352; Gillen v.
Glen Mills Constr., 2000 WL 1862603; Stark v. Stark-Lewis Co.,
1998 WL 771054; Waters v. Grace Drilling, 1995 WL 143757; Harsen
v. B & B Farms, 1994 WL 773328.
Stark, supra, is a good example of a board ruling
interpreting subsection .041(c) before the regulations were
effective. In Stark, the notice of injury was given on September
24, 1996, but the employee did not request an evaluation until
August 12, 1997. Reversing a contrary determination of the RBA,
the board found that until June 3, 1997, the employee had no
reason to believe he could not return to his usual work. Since
the employees request was made within ninety days of this date,
it was held to be timely. The board noted, in accordance with
its prior decisions, that the 90-day period for requesting an
eligibility evaluation begins to run when the employee knew or
should have known that he might not be able to return to the work
he was doing at the time of injury. Id. at *5.
Not long after the regulations in question were
adopted, the RBA concluded, just as the RBA did in the present
case, that in light of the new regulations there is no new 90-day
limit imposed after an employee is informed by a physician that
he may be permanently precluded from returning to work at the
time of the injury. Gillen, supra, at *2. The board reversed
this legal conclusion, in keeping with its pre-regulation
decisions that the 90-day time period under AS 23.30.041(c)
begins to run when the employee knew, or should have known, the
injury may permanently preclude him from returning to his
occupation at the time of injury. Id. at *5.
Jerry, supra, is another post-regulation case. In
Jerry the notice of injury seems to have been given shortly after
the injury itself, which occurred on August 11, 2000. The
employee requested an evaluation on December 27, 2002. The RBA
held that this request was untimely because the ninety-day period
began to run on March 30, 2001, when the employee received a
release to return to work that specifically limited the employees
capacities. The board affirmed the RBAs decision, noting as in
previous decisions, that the 90-day period begins to toll when
the employee knew or should have known that he may be precluded
from returning to his occupation at time of injury. Id. at *5,
6.
11 The RBA acknowledged the boards prior decisions but did
not agree with them or believe that he was bound by them. He
wrote:
Alaska Statute 23.30.041(c) directs that
the injured worker shall request an
evaluation within 90 days after the worker
has given his/her employer notice of the
injury. If the employee lacked the requisite
knowledge within this time period, then the
Alaska Workers Compensation Board has ruled
that the employee must request an evaluation
no later than 90 days after the employee knew
or should have known that they might not be
able to return to the work they were doing at
the time of injury.
Similarly, Burkes attorney acknowledged in his brief before the
board that
[n]umerous Board cases have adopted that
principle [retriggering the ninety-day
limitations period] both in situations where
the claimant did not make the request within
90 days (without actual notice of any doctors
opinion within the 90 days) and in cases when
the request was made outside the 90 [day]
period (where the notice was given outside
the 90 day window but the request was made
more than 90 days after that date).
Judge Bolger also noted, when this case was appealed to
the superior court, that the RBAs interpretation ignores the
Boards longstanding interpretation of the statute. Judge Bolger
concluded that the Board has applied a consistent interpretation
of the statute and regulation, which requires an employee to make
an application within 90 days after the extenuating circumstances
have resolved.
12 Regulations are invalid if they are not consistent with
the purposes of the statute under which they are promulgated.
See Board of Trade, Inc. v. State, Dept of Labor, Wage & Hour
Admin., 968 P.2d 86, 89 (Alaska 1998).
13 The board noted that the RBAs interpretation would not
serve the legislatures goal of encouraging early rehabilitation
intervention. The board further wrote:
[T]he RBAs application of the 90-day
requirement does not comport with the
Legislatures intent that benefits be provided
in a manner that is quick, efficient, fair
and predictable . . . . Under the RBAs
interpretation, an employee could request
reemployment benefits years, or decades,
after being advised of the need for
retraining. We find that interpretation to
be neither quick, efficient, fair,
predictable, or reasonable to employers.
(Citations omitted.)
The legislative history of the ninety-day limit set by
AS 23.30.041(c) indicates that it was the product of considerable
deliberation. The initial bill set a sixty-day limit but
advocates of workers testified that sixty days would be too early
in many cases. See Senate Bill (S.B.) 322, 6, 15th Leg., 2d
Sess. (Jan. 11, 1988) (imposing sixty-day requirement); Meeting
of the Joint Senate and House Labor and Commerce Committee, 15th
Leg., 2d Sess. (Jan. 29, 1988) (testimony of Joe Kalamarides and
Steve Montooth). A representative of vocational rehabilitation
counselors testified that workers need to start the
rehabilitation process as early as possible and advocated that
referral for evaluation be mandatory at ninety days post injury.
Meeting of the Joint Senate and House Labor and Commerce
Committee, 15th Leg., 2d Sess. (Feb. 12, 1988) (testimony of
Dennis Johnson, President, Alaska Chapter of National Association
of Rehabilitation Professionals in the Private Sector). The
limit was changed to ninety days in recognition of these
concerns. The courts view in this case that a delay of about
three months that is ninety days plus about three more months
is certainly not an unreasonable amount of time given the length
of time that had passed (and therefore the filing was timely) is
inconsistent with the legislative judgment reflected by the
ninety-day deadline and this history. See Slip Op. at 34.
14 Slip Op. at 31-36.
15 AS 44.62. See Slip Op. at 31 et seq.
16 Slip Op. at 31 (referring to language in the appellants
brief at page 44).
17 Burke makes this clear in the following language
appearing later in the same paragraph as that quoted by the
court: The legislature could have included such a discovery rule
in the Act. The lack of it is evidence the legislature did not
want it under the principle of statutory construction expressio
unius est exclusio[] alterius. Burke then makes the same
argument with respect to the intent of the board in promulgating
the extenuating circumstances regulation: Had the executive
branch (i.e., the board), in its rule-making process, wanted to
create a discovery rule in the regulation it, arguendo, could
have done so. It did not even though the current regulation was
adopted in 1998. That proves that the executive branch did not
want it either.
18 This court will ordinarily not consider issues that
have not been argued in the superior court and in the briefs
before this court. Vest v. First Natl Bank of Fairbanks, 659
P.2d 1233, 1234 n.2 (Alaska 1983), modified on rehg, 670 P.2d 707
(Alaska 1983). There are two exceptions to this rule. One is
where an error has been made that can be said to be plain error
and the other is where there is an issue of law that is critical
to a proper and just decision. The practice concerning the
critical-question-of-law exception is that the question will not
be considered until the parties have had the opportunity to brief
the issue. See id.; see also, e.g., Cragle v. Gray, 206 P.3d
446, 448-49 (Alaska 2009); Smith v. Kofstad, 206 P.3d 441, 444
(Alaska 2009). As this case stands, neither of these exceptions
applies. Plain error requires an obvious mistake, Miller v.
Sears, 636 P.2d 1183, 1189 (Alaska 1981), and for the reasons
discussed in the text in the paragraphs that follow, it is
anything but obvious that the board was precluded from making its
adjudicative ruling by the APA. If it were thought that the
critical-question-of-law exception applied, the court should
notify the parties that the question may be critical and offer
them the opportunity to brief it.
19 145 P.3d 561, 572-73 (Alaska 2006).
20 Id. at 573 (emphasis added).
21 Slip Op. at 33.
22 See supra note 3 and accompanying text.
23 See supra notes 10 and 11 and accompanying text.
24 See supra note 10.
25 Alyeska Pipeline Serv. Co., 145 P.3d at 573.
26 Foreseeability for purposes of the test expressed in
Alyeska Pipeline should rest on objective factors rather than the
assumed subjective conclusions of an individual lawyer and a
rehabilitation specialist. See, by contrast, Slip Op. at 34, 35.
The objective measure of the foreseeability of a board ruling
depends on the nature of prior board rulings, prior court
rulings, and any relevant intervening circumstances. By these
measures the foreseeability of the boards ruling in this case
cannot reasonably be doubted. As todays opinion acknowledges,
the board had developed through adjudication a Part B discovery
rule interpreting AS 23.30.041(c) to require an employee to
request an evaluation within 90 days of the date the employee
knew or should have known that he might not be able to return to
the occupation at the time of injury. Slip Op. at 29. Our
rulings in analogous discovery rule cases were in accord.
Nothing in the regulations suggested that the boards prior
rulings would not continue to stand, and the board twice ruled
after the regulations were promulgated but before its decision in
the present case that the prior rulings would be followed.
27 Alyeska Pipeline Serv. Co., 145 P.3d at 573.
28 Id.
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