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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska State Commission for Human Rights v. United Physical Therapy, United Physical Therapy v. Alaska State Commission for Human Rights (4/16/2021) sp-7516
Notice: This opinion is subject to correction before publication in the P ACIFIC 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, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA STATE COMMISSION )
FOR HUMAN RIGHTS, ) Supreme Court Nos. S-17634/17650
)
Appellant and Cross-Appellee,
) Alaska Workers' Compensation
) Appeals Commission No. 18-024
v. )
) O P I N I O N
UNITED PHYSICAL THERAPY, )
) No. 7516 - April 16, 2021
Appellee and Cross-Appellant. )
)
Appeal from the Alaska Workers' Compensation Appeals
Commission.
Appearances: Adam R. Franklin, Assistant Attorney
General, Anchorage, and Kevin G. Clarkson, Attorney
General, Juneau, for Appellant and Cross-Appellee. James
C. Croft, The Croft Law Office, Anchorage, for Appellee and
Cross-Appellant.
Before: Bolger, Chief Justice, Winfree, Maassen, and
Carney, Justices. [Borghesan, Justice, not participating]
BOLGER, Chief Justice.
I. INTRODUCTION
After an employer filed a retroactive controversion of medical treatment,
the employee's healthcare provider filed a workers' compensation claim seeking
payment for services it provided before the controversion was filed. The employer
disputed its liability for payment, and after several prehearing conferences, the Alaska
----------------------- Page 2-----------------------
Workers' Compensation Board set a hearing on the merits of the provider's claim. The
Board ordered the employer to pay the provider approximately $510.00 for the services.
The employer appealed, disputing several procedural aspects of the decision, and the
Alaska Workers' Compensation Appeals Commission affirmed the Board's decision.
We affirm the Commission's decision.
II. FACTS AND PROCEEDINGS
1
An Alaska State Commission for Human Rights
(State) employee with
preexisting medical conditions was involved in a work-related motor vehicle accident
in January 2017. The employee consulted with Dr. Teresa Bormann two days after the
accident, complaining of "neck, back and hip pain after [a motor vehicle accident]." X-
rays taken at the time showed no fractures and mild degenerative changes "without
evidence of an acute injury." Dr. Bormann referred the employee to chiropractic
treatment.
After several months of treatment the employee returned to Dr. Bormann,
who diagnosed "a prolonged whiplash type injury of the lateral neck muscles." In
December 2017 Dr. Bormann referred the employee to physical therapy at United
Physical Therapy (UPT) for chronic neck pain and headache. After an evaluation UPT
recommended eight weeks of twice weekly physical therapy. Dr. Bormann endorsed the
treatment plan, and the employee's symptoms improved enough that she reduced her
1 The parties' briefs and the Commission's decision identify the State,
Department of Health & Social Services as the State agency involved in this litigation.
The January 2017 report of injury, the employer's answer, and other documents in the
record identify the agency for which the employee worked as the Alaska State
Commission for Human Rights. There is no indication that the employee worked for the
Department of Health & Social Services; that agency is not named in the record until the
Department of Law entered an appearance about three weeks after it answered the health
care provider's written claim.
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physical therapy visits to once a week beginning in mid-January. She saw UPT three
times in February 2018. Payment for these February visits became the main dispute
before the Board.
The State arranged an employer's medical evaluation (EME) on
February 28, 2018, with Dr. M. Sean Green, a neurologist, and Dr. R. David Bauer, an
orthopedist. The State provided few medical records to the doctors: the EME report's
chart review section summarized one chart note from 2005 and one from 2010, followed
by Dr. Bormann's notes. Dr. Green expressed concern with the dearth of records related
to the employee's preexisting conditions. The doctors thought they had adequate
information to comment on causation, but included a disclaimer indicating that the
medical records the State provided were "insufficient to fully understand [the
employee's] current complaints and medical conditions."
The EME doctors diagnosed the employee with a cervical strain caused by
the accident as well as several conditions they considered preexisting or unrelated to the
work injury. The doctors stated that cervical strain is "an inherently self-limited and
benign condition," which typically resolves "in a matter of days to weeks." They said
that "[t]here is, in biological terms, no such thing as a chronic muscle strain." They
identified the employee's preexisting conditions as the cause of her continuing pain.
They did not think the accident had aggravated any of her preexisting conditions, did not
think any treatment after Dr. Bormann's initial examination was related to the accident,
and concluded no further treatment was needed. The EME doctors thought the work-
related condition was medically stable and, in response to questions about whether the
employee had a permanent impairment under the criteria in the American Medical
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2
Association Guides to theEvaluation ofPermanent Impairment (theGuides), they stated
that the employee did not have a permanent partial impairment.
Based on the EME report the State filed a notice of controversion on
March 13, retroactively controverting all care after January 2017; the State had received
3 UPT filed a
UPT's invoices for the employee's February treatments the day before.
workers' compensation claim and request for a prehearing conference shortly after the
State's controversion notice. It took the position that the State owed a penalty as well
as interest on the disputed balance because the State had "never submitted payment or
denial" for the specific claims, making UPT's total claim $1,033.27.
The State answered the claim, and wrote to UPT expressing "confus[ion]
regarding the scope of [its] Workers' Compensation Claim"; it asked for clarification
about whether UPT was "contesting the controversion itself, i.e. the medical basis for the
controversion . . . or only the non-payment of those treatment dates." The State then
requested a prehearing conference "in order to determine [UPT's] position on the
controversion."
According to a summary of the July prehearing conference, UPT "was not
seeking to challenge the controversion itself, but argued that the medical bills should be
paid even with the controversion in place." The prehearing conference summary does
not show an explicit agreement to limit the issues for hearing. UPT filed an affidavit of
2 AM.M ED.A SS'N,G UIDESTOTHE EVALUATIONOF PERMANENT IMPAIRMENT
(6th ed. 2008) [hereinafter G UIDES]. AS 23.30.190(b) requires use of the Guides when
assessing permanent partial impairment.
3 The State initially refused to pay for two December 2017 visits as well as
the February visits, claiming that UPT had not billed them in a timely manner. At the
hearing the parties informed the Board that the State had agreed to pay for the December
visits, and the Board subsequently denied UPT's claim for penalties and interest on the
December bill.
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----------------------- Page 5-----------------------
readiness for hearing on "the issues set forth in the Workers' Compensation Claim," and
the parties met for a second prehearing conference. The August prehearing summary
identified the issue for hearing as the "Merits of [UPT's] 3/23/2018 Workers'
Compensation Claim." Neither party sought to amend or clarify this summary before the
hearing.
In its hearing brief the State identified the issue as UPT's "claim that
Employer owes it payment for medical treatment services provided to Employee." The
State acknowledged that a medical provider may bring a claim for services it has
provided, but contended that it did not owe UPT for its services because the State
4
controverted care within 30 days of receiving UPT's February bill.
UPT responded that the State should pay for the February services because
the State controverted the care only after it had been provided and without prior notice
to UPT. UPT took the position that a controversion should not apply retroactively and
argued that the State should have acted earlier if it believed treatment beyond the initial
evaluation was unreasonable or unnecessary. UPT asserted that the State failed to
adequately explain its nonpayment of the bills within 30 days, as required by regulation.5
And it disputed the EME report's conclusion, arguing it was "virtually impossible to
state with certainty that 'the condition resolved itself within days of the collision' after
the patient had already been treated."
4 See AS 23.30.097(d) (giving employer 30 days to pay employee's medical
bills); see also 8 Alaska Administrative Code (AAC) 45.082(d)(1) (2020) (requiring the
employer to "notify the employee and medical provider in writing the reasons for not
paying all or a part of the bill or the reason for delay in payment no later than 30 days
after receipt of the bill" when the employer controverts a bill).
5 See 8 AAC 45.082(d)(1).
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At the hearing the Board chair identified the hearing issue as UPT's "claim
for medical costs . . . plus a penalty and interest." No one objected or offered a different
opinion about what was at issue. Only UPT's non-attorney representative testified about
the contested payments; the employee attended but said little.
Near the end of the hearing, confusion about its scope became evident.
After the State's attorney remarked that a discussion of the EME report was "not relevant
to the issues here," the Board chair stated that in order to decide the issue the Board
panel would "have to look at the EME, see if it's credible." The State objected, "Are you
serious?" The State disputed whether the issue before the Board was the same as it
would be if the employee, rather than the provider, had filed the medical claim but did
not clarify how those claims would differ.
TheBoard chair explained thattheAlaskaWorkers'CompensationAct(the
Act) required all parties to file medical records in their possession with the Board within
6 He told the State that the only medical records in the
five days after a claim is filed.
Board file other than the EME report were UPT's treatment records and one medical
record from Dr. Bormann. The chair noted that the EME report "clearly refer[red] to a
number of other medical notes" which the State had not filed with the Board. After
deliberation the Board decided to leave the record open for the parties to file any medical
records in their possession.
The State asked the Board to reconsider its decision about the medical
records, arguing that the Board's intent to evaluate the evidence did "not comport with
the issues identified for hearing" in the July prehearing summary. The State argued that
a Board regulation "limit[ed] the issues for hearing to those that are in dispute at the end
of the prehearing" and that "the summary governs the issues and the course of the
6 AS 23.30.095(h).
-6- 7516
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7
hearing." In an interlocutory order the Board denied reconsideration of its order to
provide the medical records, but stated it would determine the precisehearing issues after
deliberation.
In its final written decision the Board set out two issues relevant to this
appeal: (1) whether the issue for hearing was "medical costs" or the question "whether
[the State] is required to pay medical bills filed within thirty days preceding a
controversion"; and (2) whether UPT was entitled to payment, penalty, or interest for the
February visits.
The Board found that in discovery responses UPT had "explained it was
seeking fees for [specific] dates of service plus penalty and interest." It also found that
at the August prehearing "[t]he issues for hearing were identified as the 'Merits of
Provider's 3.23.2018 Workers' Compensation Claim.' " And the Board found that
"[n]either party requested the August . . . prehearing conference summary be amended
or reconsidered."
On the question of the hearing issue, the Board noted the State's reliance
on the sentence in the July prehearing conference summary indicating that UPT "was not
seeking to challenge the controversion itself, but argued that the medical bills should be
paid even with the controversion in place." The Board thought the summary was
ambiguous as to whether UPT was "conceding facts underlying the controversion were
correct, or merely acknowledging the controversion was not unfair or frivolous." The
Board pointed out that in July, UPT had "lacked the evidence to analyze the [EME]
doctors' conclusions" because the State had not "filed the medical reports upon which
the EME doctors relied."
7 See 8 AAC45.065(c) (providingthat prehearingconferencesummary "will
limit the issues for hearing to those that are in dispute at the end of the prehearing" and
that summary "governs the issues" unless modified).
-7- 7516
----------------------- Page 8-----------------------
The Board then decided that statements in the July prehearing summary
were irrelevant in any event because the August prehearing conference summary
explicitly identified the issue for hearing as the merits of UPT's claim"for medical costs,
penalty, and interest." Because the Board's regulations provide that "the issues stated
in the prehearing conference summary control unless unusual and extenuating
8 and the State "did not identify any such circumstances," the issue
circumstances exist,"
for hearing was medical costs.
The Board concluded that the State had to pay for the February service
dates. It gave little weight to the EME report when evaluating the evidence, relying in
part on the Guides' recognition that " '[n]on-specific chronic recurrent neck pain (also
known as chronic strain/sprain, . . . chronic whiplash, etc.)' can be the basis of a
9 The Guides thus contradicted the EME doctors' "opinion that
permanent impairment."
there was no such thing as a chronic muscle strain." The Board noted that Dr. Bormann
and the employee's chiropractor "diagnosed cervical strain well past two weeks after the
injury" and that the employee had "significantly improved" with physical therapy. The
Board found the medical care UPT provided to be "reasonable and necessary" and
ordered the State to pay for the February visits. It did not impose a penalty but did award
UPT interest for the late payments.
The State appealed to the Commission and asked it to stay the Board's
order for medical benefits. It filed an affidavit stating it would suffer irreparable harm
if it had to pay UPT because (1) "there is no mechanism under [the Act] to recoup the
payments" if the State won the appeal and (2) "making the payments only to later recoup
8 See 8 AAC 45.070(g).
9 GUIDES, supra note 2, at 564.
-8- 7516
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10
the payments creates irreparable and unnecessary transaction costs." The Commission
interpreted the State's affidavit as asserting "that no additional benefits are due to [the
employee] or to UPT." It granted the stay, deciding that even though the amount at issue
appeared to be less than $1,000.00, the State would suffer irreparable harm absent a stay.
The Commission did not consider whether the appeal raised a serious and substantial
11
question on the merits.
The Commission also notified UPT that it requires corporations to be
represented by attorneys if they intend to appear before it; it instructed UPT to get an
attorney if it "intend[ed] to participate" in the appeal. UPT eventually retained an
attorney after being advised that it "could file a motion for attorney fees" if it prevailed
on appeal and that "[i]t would be up to the Commission to decide the motion."
In May 2019 the employee asked the Commission to dismiss her from the
appeal as she had "no claim to any possible settlement" that might result. Email
correspondence fromNovember 2018 between the State and the employee was attached;
in it the State told the employee that the State's "lien/interest" related to the accident was
"settled," leaving the employee "free to negotiate/settle or otherwise handle [her] claim
10 See 8 AAC57.100(g) (governing stays fromthe Commission and requiring
an affidavit of irreparable harm without a stay).
11 See Olsen Logging Co. v. Lawson, 832 P.2d 174, 176 (Alaska 1992)
(requiring that appellant raise serious and substantial questions on the merits and
inability to recoup payments to stay lump sum workers' compensation awards); see also
Fluor Alaska, Inc. v. Rodriguez, AWCAC Dec. No. 199 at 11 (July 31, 2014),
http://labor.state.ak.us/WCcomm/memos-finals/D_199.pdf(construingAS23.30.125(c)
as encompassing both parts of Olsen Logging test for stays of past benefits).
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----------------------- Page 10-----------------------
as [she saw] fit." 12 The Commission dismissed the employee from the appeal after the
13
State filed a notice of non-opposition.
After briefing from both parties the Commission affirmed the Board's
decision. As relevant to this appeal, the Commission determined that 8 AAC 45.065(c)
governed the question whether the merits of UPT's claim were at issue and decided that
the Board had "properly identified the issues as whether the treatment provided by UPT
was compensable and, thus, payable to UPT, and whether UPT would be entitled to
interest and penalty" for the visits.
The Commission rejected the State's argument that the Board improperly
considered the Guides when evaluating the medical evidence. It cited precedent
establishing that the Board may rely on its own "experience, judgment, [and]
14 when making a decision and
observations" as well as "inferences drawn from [them]"
concluded the Board had done so in this case because AS 23.30.190(b) requires use of
the Guides. And the Commission noted the Board's statutory authority to weigh the
15 as well as decisions holding that the Act requires the
evidence and determine credibility
12 Under AS 23.30.015(a), when a "third person other than the employer or
a fellow employee is liable for damages," the employer is entitled to reimbursement for
compensation it has paid from any damages the third party pays.
13 Because the employee was not a party to the Commission appeal at the time
of the Commission's final decision, she is not a party to this appeal. Alaska R. App.
P. 204(g).
14 Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d 528, 533-34
(Alaska 1987).
15 See AS 23.30.122 ("The board has the sole power to determine the
credibility of a witness. A finding by the board concerning the weight to be accorded a
witness's testimony, including medical testimony and reports, is conclusive even if the
evidence is conflicting or susceptible to contrary conclusions.").
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----------------------- Page 11-----------------------
Commission "to follow the Board's credibility findings."16 The Commission likewise
rejected the State's argument that the Board misinterpreted AS 23.30.095(h), which
requires all parties to file relevant medical records in their possession within five days
after an interested party files a claim.
The Commission also considered whether the employee should have been
formally joined as a party. The State asserted that not joining the employee "severely
affect[ed] both [parties'] rights going forward" and suggested that because the employee
was not formally joined, she was merely a witness for UPT. The Commission said the
State had a direct liability to UPT, which could bring a claim on its own behalf, and
observed that the employee testified at the hearing but the State chose not to cross-
examine her. The Commission thus concluded that formal joinder was "neither needed
nor warranted" and that the State was not prejudiced by the Board's failure to join the
employee. Finally the Commission decided the Board's decision was supported by
substantial evidence.
The State now appeals the Commission's decision. UPT cross-appeals the
Commission's stay order.
III. STANDARD OF REVIEW
In an appeal from the Commission, we review the Commission's decision
17 We review an agency's interpretation of its own regulation under
and not the Board's.
the reasonable basis standard.18 An agency's application of its regulation to the facts of
16 Sosa de Rosario v. Chenega Lodging , 297 P.3d 139, 146 (Alaska 2013).
17 Humphrey v. Lowe's Home Improvement Warehouse, Inc., 337 P.3d 1174,
1178 (Alaska 2014).
18 Eder v. M-K Rivers, 382 P.3d 1137, 1140 (Alaska 2016).
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19
a case is reviewed for an abuse of discretion. We will find an abuse of discretion when
20
the decision on review is "arbitrary, capricious, or manifestly unreasonable." "When
we review the Commission's legal conclusions about the Board's exercise of discretion
or legal rulings, we . . . independently assess the Board's rulings and in so doing apply
21
the appropriate standard of review."
IV. DISCUSSION
A. The Commission Correctly Concluded That The Board's
Interpretation And Application Of Its Regulations To The Facts Of
This Case Were Reasonable And Not Arbitrary.
The State argues that the Board misinterpreted its own regulations or the
prehearing summaries in deciding that the issue before it included an assessment of the
medical evidence. The State contends that at the July prehearing UPT agreed to limit the
hearing issue to a narrow legal question about the State's receipt of UPT's invoices. In
the State's view the statement UPT made at the July prehearing conference had changed
the "merits" of UPT's claim by removing from the Board's consideration the
compensability of the medical care UPT provided. At oral argument before us, the State
set out the option of a remand so that UPT could either file a new claim or "rescind[] its
stipulation" that it was not challenging the controversion.
UPT responds that the Board acted reasonably because the August
prehearing conference summary is the only prehearing conference summary that
19 Hodges v. Alaska Constructors, Inc. , 957 P.2d 957, 960 (Alaska 1998)
("The scope of review for an agency's application of its own regulations to the facts is
limited to whether the agency's decision was arbitrary, unreasonable, or an abuse of
discretion.").
20 Tufco, Inc. v. Pac. Envtl. Corp., 113 P.3d 668, 671 (Alaska 2005).
21 Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).
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explicitly identifies the issues for hearing, and the issue for hearing was "Merits of
Provider's 3/23/2018 Workers' Compensation Claim." UPT contends that asking for "a
ruling on the merits of a claim means asking for payment of benefits despite a
controversion being in place" and that seeking a ruling on the merits was consistent with
not challenging the controversion.
The Board's hearing regulation provides that unless the Board "determines
that unusual and extenuating circumstances exist, the prehearing summary . . . governs
22 The State did not ask the Board to consider
the issues and the course of the hearing."
whether unusual and extenuating circumstances existed,23 so the prehearing summary
controlled the hearing issues. We agree with UPT: The Board reasonably used the
August prehearing summary to identify the merits of UPT's claim as the subject of the
hearing, because it was the only prehearing summary to identify an issue for hearing.
The parties' fundamental dispute, however, is what "Merits of [UPT's]
3/23/2018 Workers' Compensation Claim" encompasses. The State contends that UPT
stipulated it was not challenging the controversion at the July prehearing, thereby
22 8 AAC 45.070(g).
23 The State argues here that the Board "erred by failing to make an exception
for the unusual circumstances of this case, as contemplated in 8 AAC 45.070(g)." But
the State never asked the Board to determine whether such circumstances existed. The
regulation does not require the Board sua sponte to consider whether there are unusual
circumstances.
In its reply brief, the State analogizes the Board's failure to sua sponte
consider unusualand extenuating circumstancesto theBoard's action in Weaver v. ASRC
Fed. Holding Co., 464 P.3d 1242 (Alaska 2020). Nothing in Weaver resembles this
issue. The attorney in Weaver objected at the outset of the hearing, before the Board
heard testimony, to the use of medical reports authored by doctors whom the employer
had not produced for cross-examination as required under the Board's regulation. Id. at
1256. The Board did not rule on the objection but required the parties to submit briefs
on the evidentiary issue after the hearing was over. Id.
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removing the controversion from consideration at the hearing. At oral argument before
us the State questioned the Board's power "to raise issues not raised by the parties,"
asserting that the Board improperly raised the issue of the controversion's validity. UPT
emphasizes that it sought payment for its services, making the Board's interpretation of
the prehearing summaries reasonable.
We begin our analysis with a brief overview of relevant workers'
compensation principles. Workers' compensation benefitsarepayablewithoutan award
24 The controversion notifies the
unless an employer files a notice of controversion.
employee and other interested parties why the employer contests its liability, thereby
allowing a possible claimant to determine whether to file a written claim.25 The Board
may order payment of controverted benefits, but it must first determine a claimant's
26 As the Commission recognized here, when medical care is
entitlement to them.
contested the Board must decide whether the treatment is reasonable and necessary and
is related to the work injury.27
The legislature intended that the Act be construed "to ensure the quick,
efficient, fair, and predictable delivery of . . . medical benefits to injured workers at a
reasonable cost to . . . employers" and that "workers' compensation cases shall be
24 Harris v. M-K Rivers, 325 P.3d 510, 518 (Alaska 2014) (construing
AS 23.30.155).
25 See Vue v. Walmart Assocs., Inc., 475 P.3d 270, 286 (Alaska 2020)
("Controversions thus give notice of disputed issues, which an employee can use to
evaluate whether to pursue a claim." (citation omitted)).
26 See AS 23.30.110(e) (authorizing Board to reject claim or award benefits).
27 AS 23.30.010(a), .095(a); see also Bockness v. Brown Jug, Inc., 980 P.2d
462, 466 (Alaska 1999) (construing Act as requiring employers to pay only for
reasonable and necessary medical care).
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decided on their merits except where otherwise provided by statute." 28 Moreover, the
Act authorizes the Board to adopt procedures for claims and mandates that "[p]rocess
29
and procedure" in workers' compensation be "as summary and simple as possible."
The Board's regulation about prehearings allows the Board or its designee
to "exercise discretion in making determinations on" a list of issues, including
"identifying and simplifying the issues," "amending the papers filed," and "accepting
30 By
stipulations . . . that may avoid presenting unnecessary evidence at the hearing."
its terms the regulation does not give the parties free rein to remove issues from the
Board's consideration: the parties' actions are subject to the Board's or its designee's
discretion. The July prehearing summary does not indicate that UPT amended its claim,
nor does it show the Board designee's acceptance of an express stipulation to limit the
hearing issue to a narrow legal question that would not resolve the medical care's
compensability.
We have recognized that the Board "has a duty similar to that of courts to
31 The State necessarily contends that at the July
assist unrepresented litigants."
prehearing UPT unambiguously abandoned consideration of the compensability of the
care it provided. But nothing in the July prehearing summary suggests that the Board's
designee either explained to UPT that its statement about the controversion might
28 AS 23.30.001(1), (2).
29 AS 23.30.005(h).
30 8 AAC 45.065(a).
31 Bohlmann v. Alaska Constr. & Eng'g, Inc., 205 P.3d 316, 320 (Alaska
2009).
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remove the services' compensability from the Board's consideration 32 or exercised his
discretion to remove compensability as a hearing issue. Indeed nothing in the July
prehearing summary identified an issue for hearing. UPT's subsequent affidavit of
readiness for hearing told the Board it was "fully prepared for a hearing on the issues set
forth in the Workers' Compensation Claim(s) . . . Dated 3/23/18." That claim was for
"Medical Costs" as well as interest and penalty. And the August prehearing summary
then identified the hearing's subject as the merits of UPT's claim.
Black's Law Dictionary defines "merits" as "[t]he elements or grounds of
a claim or defense; the substantive considerations to be taken into account in deciding
33 TheBoard reasonably interpreted
a case, as opposed to extraneous or technicalpoints."
the only prehearing conference summary identifying the hearing issue as requiring it to
consider the substantive elements of UPT's claim for compensable medical care. The
Commission correctly summarized those substantive elements as "determin[ing] if the
treatment was reasonable and necessary for the work injury." Because the State's
controversion, based on the EME report, contended that the care was not related to the
work injury, the Board was required to evaluate the EME report in order to determine
whether the care was compensable and the State was liable for the controverted services.
The process the State advocates - involving piecemeal litigation and
multiple hearings for this limited claim - is not "as summary and simple as possible"
as the Act requires.34 And the State's interpretation of the prehearing process ignores the
32 Cf. id. at 320-21 (holding that Board failed to provide adequate assistance
to self-represented claimant by not advising him about calculating deadline after
employer misstated deadline).
33 Merits, BLACK 'S LAW DICTIONARY (11th ed. 2019).
34
AS 23.30.005(h).
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35
Board's role in investigating claims, assisting self-represented litigants, and providing
prompt resolution of workers' compensation disputes. Like any adjudicator, the Board
has an interest in deciding disputed claims promptly and thoroughly, without the need
36 Its actions here were consistent with that interest and with the
for numerous hearings.
Act's directive that claims be decided on their merits. We agree with the Commission
that the Board acted reasonably and not arbitrarily in interpreting and applying its
regulations.37
B. The Board Did Not Err In Taking Administrative Notice Of The
Guides' Statement About Chronic Muscle Strain.
In its decision the Board took administrative notice that the Guides
"recognizes a diagnosis of 'Non-specific chronic recurrent neck pain (also known as
chronic strain/sprain . . . chronic whiplash, etc.)' can be the basis of a permanent
impairment." The Board gave less weight to the EME report because the doctors'
"opinion that there was no such thing as a chronic muscle strain conflicts with the fact
the American Medical [Association] recognizes the diagnosis." The State argues that the
Board violated its due process rights by so doing.
35 See, e.g., AS 23.30.135(a) ("The board may make its investigation . . . in
the manner by which it may best ascertain the rights of the parties.").
36 See, e.g., Pool v. City of Wrangell, AWCB Dec. No. 99-0117 at 5 (May 25,
1999) ("We disfavor multiple hearings, based on judicial economy.").
37 Because the Board correctly identified the hearing issue, we do not address
the State's argument that the Board erred in requiring it to file medical records in its
possession. Medical records, particularly those discussed in the EME report, are clearly
related to the compensability of the care UPT provided to the employee. See
AS 23.30.095(h) (requiring all parties to file with the Board medical records "relating
to the proceedings" in their possession or control).
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Although the State is not a "person" that can assert due process rights
38
against another State agency,
the State as an employer is entitled to the procedural
39 The
protections afforded other employers under the Act and the Board's regulations.
AlaskaAdministrativeProcedureAct(APA),whichapplies to Board adjudication unless
the Act specifies otherwise,40 includes a provision for "official notice" that is akin to
judicial notice and parallels the Board's actions here.41
Alaska Statute 44.62.480 allows an administrative agency to take official
notice "either before or after submission of the case for decision, of a generally accepted
technical or scientific matter within the agency's special field, and of a fact that is
judicially noticed by the courts of the state." Alaska Evidence Rule 201(b)(2) provides
that a judicially noticed fact must be "capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned." The APA requires
the agency to inform the parties "of the matters to be noticed" and further provides, "A
party present at the hearing shall, upon request, be given a reasonable opportunity to
38 South Carolina v. Katzenbach , 383 U.S. 301, 323-24 (1966) (holding that
a state is not a "person" for purposes of Fifth Amendment's Due Process Clause); Kenai
Peninsula Borough v. State, Dep't of Cmty. &Reg'l Affairs , 751 P.2d 14, 18-19 (Alaska
1988) (holding that a borough is not a "person" that can assert due process rights under
Alaska Constitution).
39 See AS 23.30.001(4) (showing legislative intent that parties to Board
proceedings be "afforded due process"); cf. Kenai Peninsula Borough, 751 P.2d at 19
("[T]he only procedural rights to which the Borough is entitled are those bestowed by
statute.").
40 AS 44.62.330(a)(12).
41 AS 44.62.480.
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refute the officially noticed matters by evidence or by written or oral presentation of
authority. The agency shall determine the manner of this refutation." 42
The State contends it was deprived of "an opportunity to confront the
information" the Board noticed, but AS 44.62.480 puts the onus on the parties to seek
"a reasonable opportunity to refute the officially noticed matters." The State sought
neither reconsideration nor modification of the final decision. The Board did not take
administrative notice that chronic whiplash was a valid medical diagnosis; it merely took
notice that this diagnosis is included in a reference the Board is required to use. It is not
unreasonable for the Board to consult a reference the legislature adopted for certain
medical determinations under the Act.43
TheGuidesincludes"[n]on-specificchronic, or chronicrecurrentneck pain
(also known as chronic sprain/strain, . . . chronic whiplash, etc.)" in a table related to
cervical spine impairments.44 We have previously indicated that the Board can rely on
45 recently clarifying that "administrative
its experience when deciding a case,
adjudicators' expertise gained from repeated exposure to information in adjudications
can support conclusions made fromthe evidence presented in a specific case."46 Because
AS 23.30.190 has since 1988 required the Board to use the Guides when making
42 Id . (emphasis added).
43 Cf. Adamson v. Municipality of Anchorage , 333 P.3d 5, 21 (Alaska 2014)
(rejecting litigant's attempt to attack legislative finding about occupational disease).
44 GUIDES, supra note 2, at 564.
45 Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d 528, 533-34
(Alaska 1987).
46 Rusch v. Se. Alaska Reg'l Health Consortium, 453 P.3d 784, 801 (Alaska
2019).
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47
impairment determinations, we have little doubt the Board panel was familiar with the
Guides. And because the APA specifically permits an agency to notice a fact "after
48 the Board gave the State the same statutory
submission of the case for decision,"
procedural protections afforded to all litigants.
Weagreewith theCommissionthattheBoardappropriatelycited and relied
on a statement from the Guides when evaluating the EME report.49 We find no violation
of any procedural regulation or any abuse of discretion in the Board's procedural rulings.
C. Any Error In Failing To Join The Employee Formally Was Harmless.
The State asserts that the Board committed reversible error in failing to join
the employee to UPT's claim because the State views the employee as a necessary party
to the claim. UPT argues that the State waived this argument by failing to raise it before
the Board and, in the alternative, that any error was harmless because the Board gave the
employee notice, she participated in the proceedings, and the State had the opportunity
to cross examine her. The State replies that it raised the issue at the first opportunity
after its importance became apparent.
The Commission concluded that joinder was not necessary, but it did not
address the Board's regulation providing that "a person other than the employee filing
47 Ch. 79, § 34, SLA 1988.
48 AS 44.62.480.
49 While it is unclear whether the State appealed the Commission's conclusion
that substantial evidence supported the Board's decision, our review of the record
persuades us that the Commission did not err in so finding. We independently review
a Commission decision that substantial evidence supports the Board's findings of fact
by independently reviewing the record and the Board's findings. Humphrey v. Lowe's
Home Improvement Warehouse, Inc., 337 P.3d 1174, 1178 (Alaska 2014).
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50
a claim shall join the injured employee as a party." Under this regulation UPT
presumably was required to join the employee, which it failed to do. However the State
does not offer any persuasive argument explaining why lack of joinder was reversible
error, and we note that the State acquiesced in the employee's dismissal from the
Commission appeal.
We conclude that any error in failing to join the employee was harmless
because the Board gave the employee notice of the claim when it was filed, the parties
served her with many documents, and she participated in prehearing conferences and the
hearing itself. Because we can see no prejudice to the State from UPT's failure to
formally join the employee, we decline to reverse the Commission's decision on this
basis.
D. UPT Waived Appellate Review Of The Stay Order.
UPT cross-appealed the Commission's stay order, arguing that the
Commission's failure to consider whether the appeal raised a serious and substantial
question on the merits of the appeal was error. The State contends UPT waived appellate
review of this issue because UPT did not oppose the stay request and did not brief this
issue before the Commission.
We agree with the State that UPT waived consideration of this point by not
51 By not opposing the stay or seeking reconsideration
raising it before the Commission.
50 8 AAC 45.040(a).
51
SeeAdkinsv.Collens,444 P.3d187, 195 (Alaska2019) ("Arguments raised
for the first time on appeal are generally waived.").
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of the order, UPT did not allow the Commission to consider the points UPT now makes
52
on appeal.
Additionally, as UPT concedes, the issue is moot.
V. CONCLUSION
We AFFIRM the Commission's decision.
52 Although we do not decide whether the Commission must evaluate the
merits of an appeal when an employer seeks to stay payment of lump-sum benefits, we
are troubled by an apparent inconsistency in the Commission's interpretation of the stay
standard for lump-sum awards. The current regulation, adopted in 2012, see Alaska
Administrative Code, Register 201 (Apr. 2012), omits an evaluation of the merits for
stays of lump-sum awards; its language resembles AS 23.30.125(c), the statutory
subsection about stays. But a 2014 Commission decision interpreted the phrase
"irreparable damage" in AS 23.30.125(c) as including consideration of the merits of the
appeal. See Fluor Alaska, Inc. v. Rodriguez , AWCAC Dec. No. 199, at 6-11 (July 31,
2014), http://labor.state.ak.us/WCcomm/memos-finals/D_199.pdf. In Fluor Alaska the
Commission "construe[d]thephrase'irreparabledamage'inthestatuteas encompassing
the[] two components [of the standard in Olsen Logging Co. v. Lawson ] for purposes of
stays of lump sum payments." Id. at 11 (discussing Olsen Logging Co. v. Lawson , 832
P.2d 174, 176 (Alaska 1992)). Here, the Commission did not evaluate whether the
State's appeal raised a serious and substantial question going to the merits, one
component of the Olsen Logging test. See Olsen Logging Co. , 832 P.2d at 176.
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