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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Apone v. Fred Meyer, Inc. (3/19/2010) sp-6463
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
| JAMES APONE, | ) |
| ) Supreme Court No. S- 12748 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-05-4362 CI | |
| v. | ) |
| ) | |
| FRED MEYER, INC., | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 6463 - March 19, 2010 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Stephanie E. Joannides, Judge.
Appearances: James Apone, pro se, Anchorage.
Erin K. Egan, Russell, Wagg, Gabbert &
Budzinski, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, Winfree and Christen, Justices.
CARPENETI, Justice.
I. INTRODUCTION
An attendant at a self-service gas station sought
workers compensation benefits, alleging that his exposure to
fumes and exhaust at work caused him to be disabled. His
employer denied the compensability of the claim. After a
hearing, the Alaska Workers Compensation Board decided that the
employee had not established his claim by a preponderance of the
evidence and denied it. The superior court affirmed the board.
Because substantial evidence in the record supports the boards
findings and because the board did not commit legal error in its
treatment of the employees experts, we affirm the boards
decision.
II. FACTS AND PROCEEDINGS
James Apone worked at the self-service Fred Meyer gas
station on Abbott Road in Anchorage beginning in early 2002. His
duties included assisting customers, cleaning the pumps and any
spills that occurred, operating the cash register, and stocking
items in the kiosk near the pumps. He experienced numerous
physical symptoms, which he attributed to his work environment.
Apone left work on December 22, 2002, because he was ill; he
felt dizzy, short of breath, nauseous, and faint. At home, he
had chills and was short of breath; he testified that after many
hours he passed out. He returned to work the next day, and after
a few hours, he felt the same symptoms he had experienced the day
before. He was sick for the next few days.
Apone sought medical care from Dr. T. Noah Laufer,
M.D., on December 26, 2002. Dr. Laufer noted that Apone had had
a very stressful last year1 but also stated that Apones symptoms
would fit with fume or exhaust related symptoms. Dr. Laufer
asked Apone to avoid exposure to fumes and exhaust at work until
it [was] clear what [had] caused his symptoms. Apone filed a
report of injury with Fred Meyer on December 30, 2002. That same
day, Dr. Laufer told Fred Meyer that Apone needed to avoid
exposure to gas fumes or exhaust. Fred Meyer paid temporary
total disability (TTD) benefits to Apone for about four months.
To assess Apones condition, Dr. Laufer first ordered a
cardiac stress test, which was essentially normal. Apone
apparently told Dr. Laufer that he became short of breath, with
wheezing and coughing, after the stress test. Dr. Laufer noted
the possibility of reactive airway disease (asthma) and ordered a
methacholine challenge pulmonary function test. The test result
was mostly normal; there was slight evidence of airway reactivity
at the maximum concentration of methacholine.
Beginning in February 2003 Apone consulted with Dr.
Richard Newman, a chiropractor. Dr. Newman diagnosed Apone with
an intolerance reaction to gasoline fumes as well as xiphoid-
sternal strain-inflamation syndrome2 and cellulitis. Dr. Newman
noted that even though Apone had previously been treated for
chest pain and respiratory problems, Apone now also suffered from
nausea, headache, and mental disorientation. Dr. Newman began
treatment that included musculo-skeletal, electro-neural and
herbal approaches. Apone was later seen by Dr. Jeanne Bonar,
M.D., who ordered thyroid tests; the results were essentially
normal, although one test showed that Apone might have early
subacute thyroiditis. Dr. Bonar referred Apone to Dr. Lee
Schlosstein, M.D., a rheumatologist, who diagnosed Apone with
fibromyalgia and desaturation with activity of uncertain
significance.3
In March 2003 Dr. Brent Burton, M.D., a specialist in
toxicology and occupational medicine, conducted an employers
independent medical evaluation (EIME) for Fred Meyer. Dr. Burton
concluded that Apone did not have a work-related injury. He
attributed Apones symptoms to probable depression or anxiety with
somatic complaints. Fred Meyer filed a controversion notice on
April 22, 2003, relying on Dr. Burtons report. On April 25,
2003, Apone filed a workers compensation claim requesting TTD,
permanent partial impairment benefits, medical and transportation
costs, penalties, and a second independent medical evaluation
(SIME). Fred Meyer filed an answer denying Apones claim.
The parties stipulated to an SIME. Dr. Timothy Craven,
M.D., a specialist in occupational medicine, was the SIME
physician. Dr. Craven examined Apone and diagnosed him with
chronic fatigue syndrome and [p]ossible somatic complaints
related to psychiatric disorder. Dr. Craven found no evidence
that work-related exposure to gasoline or fumes caused Apones
symptoms. He also stated that Apones work did not aggravate,
accelerate, or combine with a preexisting condition to produce
the need for medical treatment or the disability.
Apone continued his treatment with Dr. Newman, who
rated Apone as having a thirty-five percent whole person
impairment. In September 2004 Dr. Newman noted that Apone had
failed to improve as expected over the previous several months
and recommended that Apone be referred to a facility that dealt
exclusively with environmental illness.
The parties attended a prehearing conference on October
14, 2004, shortly before the hearing on Apones claim. At the
prehearing conference, Fred Meyer raised concerns that the
diagnoses made by Dr. Newman were beyond his expertise, and Apone
asked for a continuance to allow him to obtain an expert witness
on toxic exposure. The prehearing conference officer apparently
told Apone to raise the continuance issue at the beginning of the
hearing.
The board held a hearing on Apones claim on October 19,
2004. Apone represented himself. In addition to testifying
himself, Apone called two witnesses, Pamela Miller, the executive
director of Alaska Community Action on Toxics; and Dr. Newman.
Fred Meyers only witness was its EIME physician, Dr. Burton.
Fred Meyer objected to Millers testifying as an expert
in the case and questioned her about her credentials. Miller
testified that she was not a medical doctor, but that she had a
masters degree in environmental science and twenty-five years of
experience in environmental health research and science. Fred
Meyer also made a general objection to the testimony of Apones
experts based on State v. Coon.4 The board admitted Millers
expert testimony with the qualification that she was not trained
in diagnosis and had not examined Apone; it said that it would
take under advisement the weight it would give her testimony.
Miller testified about the effects of toxic chemicals
in gasoline, particularly benzene, on human health. Miller
testified that Apones symptoms in December 2002 were consistent
with exposure to benzene and other toxic substances in petroleum
products. She also stated that environmental medical studies
showed a correlation between chemical exposure and the
development of fibromyalgia and chronic fatigue syndrome,
although she acknowledged that not all workers exposed to
chemicals at service stations get fibromyalgia. She testified
that she had not been able to do any independent testing of the
air quality at the gas station because she was subpoenaed so
close to the hearing time and faulted Fred Meyer for not having
some type of system in place to monitor the concentrations of
fumes in the air.
When Apone called Dr. Newman to testify, Fred Meyer
conducted voir dire because it questioned Dr. Newmans expertise.
Dr. Newman testified that he had a degree from a chiropractic
college and was a diplomate in nutrition. He stated that he did
not have any certification in toxicology and that less than ten
percent of his practice dealt with patients with chemical
exposure problems. Dr. Newman testified that he did not diagnose
a toxicological condition in Apone but said that in his opinion
environmental agents had caused some stress and disturbance in
Apones nervous system. Dr. Newman said that the core of
chiropractic is abnormality and transmission of the nervous
system, so that his evaluation and treatment of Apone was within
the scope of chiropractic. He also testified that he was able to
determine that Apone had a specific reactivity to environmental
toxins, particularly to petrochemicals, but could not say where
the toxins came from. Dr. Newman indicated that he could not
entirely exclude the possibility of a psychological explanation
for Apones condition.
Apone testified about his prior work history and the
development of his symptoms. He gave a history of his treatment
with different doctors and talked about the doctors failure to
test his blood for exposure to toxins. He presented general
information from books and the internet about chemical exposure,
medical mistakes, fibromyalgia, and chronic fatigue syndrome.
Apone described his physical condition as like running a marathon
and then being hit by a bus, with long-term pain, headaches,
muscle and joint aches, sore throat, and exhaustion.
Dr. Burton, Fred Meyers EIME physician, testified that
he was board certified in occupational medicine and toxicology.
He indicated that he had examined Apone as well as reviewed
Apones medical records and laboratory results and had come to the
conclusion that Apones condition was not related to his work at
Fred Meyer. During his examination of Apone, Dr. Burton took a
detailed work history about Apones job at the gas kiosk.
According to Dr. Burton, air testing was not needed to evaluate
Apones exposure because of the work history Apone presented. Dr.
Burton testified that Apones lab results were essentially normal
and that Apone had expressed symptoms of depression and anxiety
along with a variety of somatic complaints that [could] not be
explained on the basis of objective findings. Dr. Burton
concluded that the best explanation for Apones symptoms was a
diagnosis of depression with some anxiety.
Dr. Burton took exception to Pamela Millers conclusions
about any link between Apones illness and his work because,
according to Dr. Burton, there was no consideration of the dose
response relationship. Dr. Burton also disagreed with Dr.
Newmans conclusions, asserting that Dr. Newman was simply making
an association between Apones work and his illnesses based on a
temporal relationship.
In its November 2004 decision, the board concluded that
Apone had failed to establish a compensable claim. The board
used its three-step analysis to evaluate the claim.5 It found
that Apone had attached the presumption of compensability through
Dr. Newmans testimony and his reports. It stated that the claim
was based on highly technical medical considerations and that the
claimant ha[d] presented medical evidence necessary to make that
connection. It then decided that Fred Meyer had rebutted the
presumption through Dr. Burtons testimony and report as well as
Dr. Cravens and Dr. Schlossteins reports. Finally, the board
concluded that Apone had not proven his claim by a preponderance
of the evidence. The board first decided that Millers testimony
could not be relied on to show any connection between [Apones]
alleged exposure in the workplace and his current claimed medical
problems. It discounted Dr. Newmans expertise, writing that Dr.
Newman did not have the requisite expertise to diagnose the
employees condition and to formulate an opinion as to whether the
employees condition is related to his alleged exposure in the
workplace. The board decided to rely on the opinion of Dr.
Burton and disregard[] the opinions of Dr. Newman and Miller. It
found that Apone had not met his burden of proof and rejected his
claim.
Apone appealed to the superior court. In the superior
court, Apone argued that neither the board nor his employer had
given him adequate assistance in preparing and presenting his
case. He also asserted that the board did not recognize his
expert witnesss statements regarding his claim and that it abused
its discretion by not doing so. He complained that Fred Meyer
had failed to give him information about toxic substances he was
exposed to at his job. He argued that the board should have
awarded him compensation and questioned the integrity of the
hearing process.
The superior court affirmed the boards decision,
holding that substantial evidence in the record supported the
boards decision that Apone had not proven his claim. Although
the court stated that it would not uphold a finding that
chiropractors are per se unqualified to render a medical opinion
or that Miller was not an expert, it concluded that the board
could properly give more weight to Dr. Burtons testimony than to
the testimony of Miller and Dr. Newman. The court decided that
it was not error for the board to disregard Millers testimony on
the question whether Apone had suffered an injury as a result of
exposure to gas or diesel fumes at his workplace or for the board
to permit Dr. Burton to listen to the testimony of other
witnesses before answering questions. Finally, the court
rejected Apones contention that the board had the duty to inform
him that he needed to present evidence from a medical doctor and
determined that Apone had waived his argument that Fred Meyer was
required to provide him with information either about his claim
or about the environmental health of his workplace. Apone
appeals.
III. STANDARD OF REVIEW
In a workers compensation appeal from the superior
court, we independently review and directly scrutinize 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 In deciding whether substantial
evidence supports a finding, we do not reweigh the evidence or
choose between competing inferences, but simply determine whether
such evidence exists.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 the boards decisions about the admissibility
of evidence for 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. The Board Properly Considered the Testimony of Apones Expert
Witnesses.
A. Apone asserts that the board abused its discretion by not
recognizing Pamela Miller as an expert witness. He contends that
even though she had the most knowledge about gasoline
exposures . . . in Alaska, the board totally discounted her
testimony. Apone also argues that the board improperly evaluated
Dr. Newmans testimony because Dr. Newman presented the most
credible evidence relat[ed] to gasoline exposure and [its]
relationship to the work injury. Fred Meyer responds that the
board acted within its authority in giving less weight to the
testimony of Apones experts.
At the hearing, the board admitted Millers testimony
with the qualification that she was not trained in diagnosis and
had not seen Apone; the board permitted her to testify in general
about the nature of toxics and their effects on people and the
environment. In its final decision, the board stated that
because Miller was not a medical doctor, her testimony cannot be
relied on by the employee to show any connection between his
alleged exposure in the workplace and his current claimed medical
problems.
We disagree with Apones contention that the board
failed to recognize Miller as an expert or that it improperly
considered her opinion. Interpreting the boards decision in
light of the whole record leads us to conclude that the board
recognized Miller as an expert but limited the scope of her
expert testimony to general information about the effects of
toxins on people and the environment. In order to succeed in an
occupational disease case, an employee must show (1) that his
disease was caused by the conditions of his employment; and (2)
that as a result of those working conditions, the risk of his
contracting the disease was greater than that which generally
prevails in employment and living conditions.13 Apone needed to
provide other expert testimony to establish the work-relatedness
of his disability and could not rely solely on Millers testimony
because she lacked the expertise to link his exposure to his
illness.
The board did not qualify Miller as an expert in
diseases or medicine. Miller herself disclaimed any
certification in diagnosis and stated that her role in the case
was to review the scientific and medical literature, and based on
the information that [she had] gained in the interview with Mr.
Apone, try to summarize the toxicological effects that can ensue
from inhalation of fumes from gasoline and diesel fuel.
In spite of the limitations that the board placed on
Millers expert testimony, she offered testimony about the key
issue in the case whether Apones exposure at Fred Meyer caused
an occupational disease which was not an opinion within the
scope of her board-recognized expertise. Miller testified that
she believe[d] that [Apone] suffered both acute and chronic
health problems from his exposure to the toxic components of the
fuels and that she believe[d] [Apone] should receive
compensation, medical support, as well as medical surveillance.
She also testified that [Apones] chronic health problems seem to
be associated with his acute and repeated exposure over the
months that he was employed at the fuel distribution center.
Because Miller was not qualified by the board to give an opinion
about the compensability of Apones injury or about the specific
health effects that Apone suffered as a result of his work at the
Fred Meyer gas station, the board properly discounted her
testimony.14
Apones contention that the board impermissibly
discounted Dr. Newmans opinion also fails. The opinion or
testimony of an employees treating physician is not entitled to
greater weight than that of an employers physician.15 After
finding that Apones claim was based on highly technical medical
considerations, the board used Dr. Newmans testimony and reports
to attach the presumption of compensability. From this, it
appears the board determined that, considering Dr. Newmans
testimony in isolation, he had the required knowledge and
experience to provide some support for Apones claim. However, at
the third stage of the presumption analysis, when the board
weighed the evidence, it discounted Dr. Newmans testimony it
gave it little weight. The board was free to give less weight to
Dr. Newmans testimony.16 It was reasonable for the board to do
so: Dr. Newman testified that he did not have any certification
in toxicology and that less than ten percent of his patients had
problems resulting from toxic exposure. Moreover, even though
Dr. Newman diagnosed Apone with a specific reactivity to
environmental toxins, and particularly to petrochemicals, Dr.
Newman also testified that he could not say where the toxins had
come from.17
Although the boards written decision could be read to
suggest that the board did not recognize Miller or Dr. Newman as
experts, the board permitted them both to testify as experts.
The board simply gave little weight to their testimony when it
evaluated the evidence.
B. Substantial Evidence Supports the Boards Decision.
As we have already noted, the board applied its three-
step presumption analysis to Apones claim.18 It decided that
Apone attached the presumption of compensability, that Fred Meyer
rebutted it, and that Apone had not proven his claim by a
preponderance of the evidence. In determining that there was no
connection between Apones workplace exposure and his disability,
the board g[ave] weight to the opinion of Dr. Burton, Fred Meyers
EIME physician, in part because of his superior credentials and
expertise.
Apone argues that the board improperly weighed the
evidence in denying his claim. Because the only evidence-related
basis for a challenge to the boards decision is that it was not
supported by substantial evidence, we interpret Apones argument
as one that the boards decision is not supported by substantial
evidence in the record. According to Apone, Miller had more
information about gasoline exposures in Alaska than Fred Meyers
expert, and Dr. Newman presented the most credible evidence
relating to gasoline exposure and [its] relationship to the work
injury. Fred Meyer responds that the board properly relied on
the testimony of Dr. Burton, Dr. Craven, and Dr. Schlosstein to
reject Apones claim and that these reports comprise substantial
evidence that supports the boards decision.
Dr. Burtons testimony and the reports of Dr. Burton and
Dr. Craven provide substantial evidence for the boards finding
that Apone failed to establish a compensable claim. Dr. Craven,
the SIME physician and a specialist in occupational medicine,
examined Apone and reviewed his medical records. Dr. Craven
concluded that there was no evidence for work place exposure to
gasoline or diesel fumes causing his symptoms. Dr. Burton
testified that there was no link between any of Apones medical
problems and his work at Fred Meyer. Dr. Burtons report reflects
a thorough evaluation of Apones symptoms, medical history, and
medical testing. Dr. Burton was board certified in toxicology
and occupational medicine. The boards finding concerning the
weight to be given to a medical report is conclusive.19 Here, it
was reasonable for the board to rely on Dr. Burtons opinion
rather than Dr. Newmans because of Dr. Burtons training and
practice in toxicology.20
In sum, substantial evidence in the record supports the
boards finding that Apone did not establish a compensable claim.
C. The Board Provided Adequate Assistance to Apone.
Quoting Richard v. Firemans Fund Insurance Co.,21 Apone
argues that the board did not fulfill its duty to him as a pro se
litigant, but it is difficult to discern precisely what he
thought the board needed to do to help him. The superior court
interpreted Apones brief in this regard as arguing that the board
should have advised him that he needed to have a medical doctor
testify as an expert.
We recently held that the boards duty to assist pro se
litigants is similar to the duty of a court.22 Here, we see
nothing to indicate that the board failed in its duty to assist
Apone. Apone filed a workers compensation claim, conducted
discovery, and presented expert testimony at his hearing. If
Apone is arguing that the board should have told him that he
needed a medical doctor to testify at his hearing or helped him
secure an expert witness, we agree with the superior court that
this type of decision is a strategy decision and beyond what is
required of the board. Medical testimony is not required in all
workers compensation cases,23 so a party must make a strategy
decision about whether expert medical testimony is necessary. As
we stated in Kaiser v. Sakata, [a]dvising litigants of every
possible outcome of every decision is beyond the scope of the
courts obligation to the pro se litigant.24 Apone apparently knew
that he needed some type of expert testimony to prove his claim:
he asked for a continuance at the October 14, 2004, prehearing
conference so that he could find an expert witness on toxic
exposure. The prehearing conference officer told him to raise
the continuance issue at the beginning of the board hearing.
Instead, Apone presented Miller as an expert in toxins and the
environment.
Apone also asserts that the board did not adequately
explain the types of benefits available to injured workers and
suggests that the board should have given him more information
about the discovery process, trial process, and deadlines or that
it should have independently investigated his claim. Nothing in
the record shows that Apone had difficulties with any of these
issues or, if he did, that he alerted the board to his need for
assistance.25 He sent requests for production to Fred Meyer and
presented and cross-examined witnesses at the board hearing. His
written workers compensation claim sought a variety of benefits,
and his claim was denied not because of the specific benefits he
requested but because the board decided that he had not proven by
a preponderance of the evidence that his injury was compensable.
Based on our review of the record, we hold that the board
fulfilled its obligation to assist Apone.
D. Apones Other Arguments Are Waived or Lack Merit.
In his brief before us, Apone argues for the first time
that the board proceedings violated his constitutional rights to
due process and equal protection. Because he did not raise this
argument before the board or the superior court, he has waived
it.26 Apone also waived any argument about the SIME process
because he did not adequately brief this issue.27
Apone raises an argument before us about spoliation of
evidence, which appears to be related to his contention, made
before the board and the superior court, that Fred Meyer
destroyed tapes of him getting sick at work before he could
request them in discovery. In July 2004 Apone requested through
discovery copies of security tapes from the gas kiosk made while
he was employed at Fred Meyer. Fred Meyer responded that any
tapes taken during the time of Apones employment would already
have been destroyed because the tapes were not retained
indefinitely. Apone has not adequately briefed whether sanctions
for spoliation of evidence can apply in a board proceeding.28
This failure is particularly telling where, as here, the board
has a regulation governing discovery sanctions. Given Apones
failure to adequately brief the issue, we decline to reach it.29
Finally, Apone maintains that the hearing officer was
biased against him. We see no merit in this contention. To show
hearing officer bias, a party must demonstrate that the hearing
officer had a predisposition to find against a party or that the
hearing officer interfered with the orderly presentation of the
evidence.30 Apone does not point to anything in the record
showing that the hearing officer interfered with the presentation
of evidence in his case or that she was predisposed to find
against him. Apone also claims that the prehearing and hearing
officers were openly [disparaging] and rude to him. Our review
of the record gives no indication that the hearing officer
interfered with the presentation of evidence, or that any
officers were disparaging to Apone.
V. CONCLUSION
For the reasons stated above, we AFFIRM the boards
decision in all respects.
_______________________________
1 Apones T-shirt business, which he had for many years,
failed in 2001. Dr. Laufer had previously treated Apone for
depression and referred him for psychiatric treatment prior to
the alleged injury at Fred Meyer.
2 The xiphoid is the cartilage at the lower end of the
sternum. Stedmans Medical Dictionary 1262, 1743 (25th ed. 1990).
3 Desaturation is defined as [t]he act, or the result of
the act, of making something less completely saturated; more
specifically, the percentage of total binding sites remaining
unfilled, e.g., when hemoglobin is 70% saturated with oxygen and
nothing else, its d[esaturation] is 30%. Stedmans Medical
Dictionary 421 (25th ed. 1990).
4 974 P.2d 386 (Alaska 1999).
5 See AT & T Alascom v. Orchitt, 161 P.3d 1232, 1240
(Alaska 2007) (citing Bradbury v. Chugach Elec. Assn, 71 P.3d
901, 905-06 (Alaska 2003)) (summarizing three-step analysis in
workers compensation cases).
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 v. Alaska Constr. & Erectors, 948
P.2d 454, 456 (Alaska 1997)).
9 Steffey v. Municipality of Anchorage, 1 P.3d 685, 689
(Alaska 2000) (quoting Thompson v. United Parcel Serv., 975 P.2d
684, 688 (Alaska 1999)).
10 Circle De Lumber Co. v. Humphrey, 130 P.3d 941, 946
(Alaska 2006).
11 Municipality of Anchorage v. Devon, 124 P.3d 424, 429
(Alaska 2005) (citing DeYonge, 1 P.3d at 94).
12 Dougan v. Aurora Elec. Inc., 50 P.3d 789, 793 (Alaska
2002).
13 Delaney v. Alaska Airlines, 693 P.2d 859, 861 (Alaska
1985), overruled on other grounds by Wade v. Anchorage Sch.
Dist., 741 P.2d 634, 638-39 (Alaska 1987).
14 See Structural Pres. Sys., Inc. v. Petty, 927 A.2d
1069, 1078-79 (D.C. Cir. 2007) (quoting Gonzalez v. United
States, 697 A.2d 819, 826 (D.C. Cir. 1997) and citing 32 C.J.S.
Evidence 526 (1996) and 4 Jack B. Weinstein & Margaret A.
Berger, Weinsteins Federal Evidence 702.04[6] (Joseph M.
McLaughlin ed., 2d ed. 1997 & 2003 Supp.)) (noting that expert
qualified in one field may not provide opinion beyond scope of
her expertise). See also Fueger v. Case Corp., 886 N.E.2d 102,
104 (Ind. App. 2008) (holding that expert in one field cannot
offer opinions in other fields absent a requisite showing of
competency in that other area); Graftenreed v. Seabaugh, 268
S.W.3d 905, 914 (Ark. App. 2007) (Experts may not offer opinions
that range too far outside their area of expertise.).
15 Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 793
(Alaska 2007) (citing Safeway, Inc. v. Mackey, 965 P.2d 22, 29
(Alaska 1998)).
16 AS 23.30.122. See also Lindhag v. State, Dept of
Natural Res., 123 P.3d 948, 953-54 (Alaska 2005) (holding that
board properly relied on expert with more training in
environmental medicine).
17 In a March 2003 letter, Dr. Newman wrote that he could
not say whether Apones medical condition was due to work-related
exposure to chemicals or was an eventuality he would have
suffered anyway.
18 See supra note 5 and accompanying text.
19 AS 23.30.122.
20 See Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004)
(noting that board reasonably discounted testimony of doctor with
limited experience).
21 384 P.2d 445, 449 (Alaska 1963).
22 Bohlmann v. Alaska Constr. & Engg, Inc., 205 P.3d 316,
320-21 (Alaska 2009).
23 Veco, Inc. v. Wolfer, 693 P.2d 865, 870-71 (Alaska
1985).
24 40 P.3d 800, 804 (Alaska 2002).
25 See id. (holding that where pro se litigant does not
inform court of his difficulties with discovery process, litigant
not entitled to greater guidance from court regarding mechanics
of that process).
26 See Wagner v. Stuckagain Heights, 926 P.2d 456, 459
(Alaska 1996). For the same reason, Apone has also waived his
argument that Fred Meyer had a duty pursuant to 3 Alaska
Administrative Code 26.100 to assist him and that it failed to do
so.
27 Thoeni v. Consumer Elec. Servs., 151 P.3d 1249, 1257
(Alaska 2007) (quoting Peterson v. Ek, 93 P.3d 458, 464 n.9
(Alaska 2004)).
28 See Peterson, 93 P.3.d at 464 n.9.
29 8 AAC 45.054(d). Even were we to reach Apones claims,
he would not prevail, for he has not shown the relevance of the
destroyed evidence. The tapes would at most have shown that he
became ill at work, but Fred Meyer did not dispute that fact, as
it paid him TTD benefits for four months. In dispute was the
cause of his illness, and the tapes would shed no light on the
cause.
30 AT & T Alascom v. Orchitt, 161 P.3d 1232, 1246 (Alaska
2007) (citing Tachick Freight Lines v. Dept of Labor, 773 P.2d
451, 453 (Alaska 1989)).
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