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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jay Jespersen v. Tri-City Air and Alaska Insurance Guaranty Company (5/3/2024) sp-7698
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, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
JAY JESPERSEN, )
)
Supreme Court No. S-18526
Appellant, )
)
Alaska Workers’ Compensation
v. )
Appeals Commission No. 21-006
)
TRI-CITY AIR and ALASKA ) O P I N I O N
INSURANCE GUARANTY )
ASSOCIATION, ) No. 7698 – May 3, 2024
)
Appellees. )
)
Appeal from the Alaska Workers’ Compensation Appeals
Commission.
Appearances: Richard L. Harren and H. Lee, Law Offices
of Richard L. Harren, P.C., Wasilla, for Appellant. Vicki A.
Paddock, Meshke Paddock & Budzinski, Anchorage, for
Appellees.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
PATE, Justice.
INTRODUCTION
A pilot injured in an airplane crash in 1985 asked the Alaska Workers’
Compensation Board to award him medical benefits for a 2016 spinal surgery and
subsequent treatment as well as for diabetes treatment ancillary to his spinal treatment.
----------------------- Page 2-----------------------
At the final hearing the Board excluded the testimony of the pilot’s biomechanics expert
because his witness list did not conform to Board regulations. Based on the evidence
presented, the Board concluded the 1985 injury was not a substantial factor in the pilot’s
spinal problems and denied his claim.
The Alaska Workers’ Compensation Appeals Commission affirmed the
Board’s decision, concluding that substantial evidence in the record supported the
Board’s decision and that the Board had not abused its discretion in its procedural
rulings. The pilot appeals, arguing that the Commission’s conclusions about substantial
evidence and abuse of discretion were erroneous. We affirm the Commission’s
decision.
FACTS AND PROCEEDINGS
A. Facts
Jay Jespersen was employed by Tri-City Air when the small plane he was
piloting crashed near Quinhagak in November 1985. Jespersen sustained a number of
injuries in the crash, including several rib fractures and a vertebral compression fracture
at L5.1 Jespersen underwent treatment in Bethel at the U.S. Public Health Service
hospital for a short time, recovered on his own at a friend’s house in Bethel, and then
returned to his home in Minnesota. In Minnesota he first received treatment from a
medical doctor but later changed to chiropractic care because he did not feel he was
improving under the doctor’s care. Jespersen saw Dr. C. M. Carney, D.C., as well as
his son, Dr. Michael Carney, D.C. In June 1987 Dr. Michael Carney diagnosed
Jespersen with “early degenerative disc disease of L-5, S-1.” Jespersen recovered
sufficiently to work as a pilot in Minnesota beginning in June 1987.
1
Intervertebral discs are identified by the numbers of the vertebrae above
and below the disc. L5 is the last of the lumbar vertebrae; as discussed immediately
below, S1 is the first sacral vertebra.
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Jespersen subsequently returned to Alaska, working for Sourdough
Outfitters; he and his wife bought Brooks Range Aviation i n 1994. They owned and
operated the business for many years, with Jespersen working as a pilot as well as a
mechanic. Jespersen and his wife spent about seven months per year in Alaska, two to
three months in Arizona, and the balance of time in transit or in Minnesota.
The administrative record contains no medical records from June 1987 to
August 2007, even though medical records generated later indicate that Jespersen
received substantial medical care during this 20-year period. In August 2007 Jespersen
went to an emergency room in Fairbanks because of a cough and weight loss. He
2
reported that he had been taking a steroid for osteoarthritis and fibromyalgia. No
medical records show when Jespersen was diagnosed with osteoarthritis and
fibromyalgia, which body parts were affected by t he osteoarthritis, or what prompted
the fibromyalgia diagnosis. During this hospital visit Jespersen was diagnosed with
3
diabetes.
In early September 2014 Jespersen returned to the emergency room in
Fairbanks after he had an episode in which he lost feeling in both legs for about 30
minutes. According to hospital records, he reported that during the previous week he
had felt “weakness” in both lower legs, but that day he “progressively suddenly felt
both of his legs giving out” as he was walking in his yard. He fell to the ground but
gradually regained sensation in both legs and was taken to the emergency room.
Jespersen underwent multiple tests, but the emergency room doctors were unable to
identify a cause of his loss of feeling. Jespersen was discharged because he reported
2
Fibromyalgia is “[a] common syndrome of chronic widespread soft-tissue
pain accompanied by weakness, fatigue, and sleep disturbances; the cause is unknown.”
Fibromyalgia, STEDMAN’S MEDICAL DICTIONARY (Westlaw database updated
Nov. 2014).
3
Jespersen was also diagnosed with other conditions that are not relevant
to this appeal.
-3- 7698
----------------------- Page 4-----------------------
being back to his baseline; he was told to follow up for further testing. Imaging studies
of the lumbar spine at the time showed “[n]o evidence of lower thoracic or lumbar cord
compressing lesion” but did show a disc protrusion at L5-S1 “causing mild to moderate
bilateral foraminal narrowing.” A study of his thoracic spine showed “small disc
protrusions.”
Jespersen sought medical care in Arizona for neck and back pain in
February 2016. He told the provider his neck and back pain began with the airplane
crash. Imaging studies showed a “broad-based disc bulge and superimposed central
4
disc protrusion” at L5-S1, as well as foraminal stenosis. The Arizona medical records
report a diagnosis of degenerative disc disease; the doctor opined that Jespersen’s pain
in “the neck and back [was] due to a comb[ination] of cervical spondylosis, thoracic
5
and cervical degeneration” and that Jespersen had “lumbar degeneration that [was]
causing [left extremity] paresthesia.” He was treated with epidural steroid injections in
his cervical spine and at L5-S1. He also had medial branch blocks and radiofrequency
ablation at several levels of the lumbar spine, including L5, for “lumbar spondylosis.”
In June 2016 Jespersen sought care in Alaska for an “[e]xacerbation of
low back pain”; he was “unable to put any weight on his left lower extremity due to
weakness.” A chart note from this time indicates Jespersen “had back issues for over
32 years after he was involved in an airplane crash.” Imaging showed a “[m]oderate
disc bulge” at L5-S1, “eccentric to the left.” The radiology report stated, “Multiple
4
Foraminal stenosis involves a narrowing of an opening in a bone or other
structure. See Foramen, STEDMAN’S MEDICAL DICTIONARY (Westlaw database
updated Nov. 2014); Stenosis, id.
5 TEDMAN’S
Spondylosis is stiffening of the vertebra. Spondylosis, S
MEDICAL DICTIONARY (Westlaw database updated Nov. 2014) (“Ankylosis of the
vertebra . . . .”); Ankylosis , id. (“Stiffening or fixation of a joint as the result of a disease
process . . . .”).
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----------------------- Page 5-----------------------
levels of lumbar spine degenerative change are seen, which are worst at the L5-S1
level.”
Jespersen received care from Dr. Paul Jensen, who recommended “an L5-
6
S1 complete laminectomy with central decompression and diskectomy.” The surgery
was performed in July 2016, and a few days later Jespersen reported a return of feeling
in part of his foot.
Jespersen recovered well from the surgery, but the following year he had
a recurrent disc problem at L5-S1. Dr. Jensen recommended a microdiskectomy in May
2017, but Jespersen wanted to try steroid injections first so as not to take time off during
the summer. In J uly Jespersen again c onsulted with Dr. Jensen’s office, reporting that
the pain was worse and limited his activities; he was given medication. Jespersen later
obtained an opinion from Dr. Jensen for use in this litigation that identified the 1985
airplane crash as a substantial factor in causing the need for the 2016 surgery and for
post-surgery care.
The medical records dated after 2017 in the administrative record are
relatively scant, but those records demonstrate that Jespersen had continuing problems
with his diabetes as well as neck and back pain. A 2019 MRI taken in Fairbanks
indicated a right disc protrusion that “abut[ted] both S1 nerve roots.” Jespersen saw a
chiropractor in Arizona, and it appears the chiropractor referred him to a surgeon for
his neck complaints, as well as some vision problems.
In late 2020 and early 2021, Jespersen was in Minnesota for an extended
period, apparently because of the COVID-19 pandemic. While there he sought care at
the Mayo Clinic for multiple concerns, including low back pain and radicular symptoms
as well as diabetes. At a January 2021 neurosurgery consult a physician suggested the
6
A laminectomy is a surgical procedure that removes the lamina (the back
part of the vertebra). Laminectomy , STEDMAN’S MEDICAL DICTIONARY (Westlaw
database updated Nov. 2014).
-5- 7698
----------------------- Page 6-----------------------
possibility of another decompression at L5-S1 or possibly a fusion surgery. A surgeon
told Jespersen his diabetes was problematic and he needed to control his blood sugar
levels; the doctors suggested Jespersen should return in three months, but Jespersen
stated he would likely be in Alaska at that time.
B. Proceedings
7
Tri-City Air paid compensation following Jespersen’s injury in 1985
until June 1987, when Jespersen returned to work. Jespersen filed a claim for additional
compensation in October 1987. This claim resulted in a compromise and release
agreement that explicitly left open future medical care; the Board approved the
settlement in 1988. The claim was dormant until December 2016, when Dr. Jensen’s
office filed a workers’ compensation claim for medical costs because Jespersen’s
“commercial insurance” had denied a claim for the surgery “due to an open work comp
case.” Tri-City Air answered and denied the claim. It also filed a controversion notice,
citing the lack of medical evidence tying Jespersen’s 2016 surgery to the 1985 crash.
Tri-City Air arranged for Jespersen to be seen by Dr. R. David Bauer for
an employer’s medical evaluation (EME) in March 2017. Dr. Bauer listed three
diagnoses related to the 1985 airplane crash and four diagnoses not substantially caused
by or aggravated by the crash. Dr. Bauer thought the need for surgery in 2016 was the
result of degenerative disc disease; he specifically opined that the L5 fracture was not
a substantial factor in causing the disc herniation that prompted the surgery. Dr. Bauer’s
report noted that Jespersen’s fracture was of the “superior endplate” of L5 and “did not
result in any damage to the L5-S1 disc.” Dr. Bauer cited several studies, including
studies about the interaction between spinal fractures and disc degeneration, to support
his opinion that the L5 fracture Jespersen suffered was not a substantial factor in the
7
In this opinion, we refer to the employer and Alaska Insurance Guarantee
A
ssociation collectively as “Tri-City Air.”
-6- 7698
----------------------- Page 7-----------------------
L5-S1 disc’s later degeneration. After receiving Dr. Bauer’s report, Tri-City Air filed
another controversion notice.
Jespersen filed a workers’ compensation claim of his own in January
2018, seeking disability benefits in addition to medical and transportation costs. The
claim alleged that the “progressive effects of [the] original injury combined with the
aging process have limited motion and increased pain to the point employee can no
longer work, unless some pain relief is found.” Tri-City Air answered and denied all
claims. It also filed another controversion notice.
In January 2019 Jespersen filed with the Board a copy of responses Dr.
Jensen gave to a 2017 letter Jespersen’s attorney had written about causation. (It
appears that Dr. Jensen did not send the responses back until 2019.) Dr. Jensen
answered “yes” — with no explanation — to questions about whether the 1985 airplane
crash was a substantial factor in the need for the 2016 surgery, follow-up care following
this surgery, and “additional medical care which will continue into the foreseeable
future.” Shortly thereafter Jespersen sought a Board hearing on his 2018 claim by filing
8
an affidavit of readiness for hearing; Tri-City Air filed an affidavit in opposition.
Jespersen filed a request to cross-examine Dr. Bauer, and Tri-City Air filed a request to
9
cross-examine Dr. Jensen. The Board set a hearing date for Jespersen’s claim for May
2019.
Tri-City Air petitioned the Board for a second independent medical
evaluation (SIME) with an orthopedic surgeon, citing a causation dispute between Dr.
8
See AS 23.30.110(c) (requiring party to file “an affidavit stating that the
party has completed necessary discovery, obtained necessary evidence, and is prepared
for the hearing” when requesting Board hearing).
9
See 8 Alaska Administrative Code (AAC) 45.052(c) (setting out process
to request cross-examination of medical report’s author).
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----------------------- Page 8-----------------------
10
Jensen and Dr. Bauer. Jespersen opposed the SIME, and the Board set a hearing on
the issue for April 2019.
At the April hearing Tri-City Air asked the Board to consider an
endocrinology SIME because Jespersen had testified at deposition about the effect his
pain had on his blood sugar; Tri-City Air was concerned about the lack of medical
evidence related to diabetes. The Board acknowledged Tri-City Air’s concern.
Jespersen then disavowed an intention of making a claim related to his diabetes.
Jespersen’s main concern about the SIME was time: Jespersen wanted a hearing
quickly because of the unpaid surgery bills’ financial impact on him. The Board
ordered a panel SIME “including an orthopedic surgeon and an endocrinologist,” with
a plan to schedule the SIME to minimize the disruption in Jespersen’s work.
Scheduling the SIME became problematic; eventually the parties agreed
that the endocrinology appointment would not include a physical examination and that
the endocrinologist could rely on the orthopedic specialist’s physical examination. The
Board later held a second hearing about the SIME process during which Tri-City Air
objected to Jespersen’s witness list because it did not conform to the Board’s regulation
about witness lists. That regulation requires, in relevant part, “a brief description of the
11
subject matter and substance of the witness’s expected testimony.”
The orthopedic SIME took place in March 2020. The SIME doctor, Dr.
Sidney H. Levine, concluded Jespersen’s need for “[t]reatment and evaluation in 2014”
10
The request cites AS 23.30.095(k), which authorizes the Board to require
a SIME when there is a difference of opinion between the parties’ doctors on certain
issues, including causation. The Board’s letters to the SIME doctors suggested it
ordered the SIME pursuant to AS 23.30.095(k). This provision was added to the Alaska
Worker’s Compensation Act in 1988. Ch. 79, § 18, SLA 1988. We express no opinion
about the applicability of this subsection to cases involving an injury that happened
before July 1, 1988, because no one raised this issue. Ch. 79, §§ 18, 48, SLA 1988.
11
8 AAC 45.112.
-8- 7698
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was “unrelated to the initial injury” in 1985. Dr. Levine identified Jespersen’s work
activities over the years as well as his activities of daily living as alternative causes of
the need for treatment of his lumbar spine. He indicated that the cause of Jespersen’s
diabetes was “undetermined, but most certainly is not related” to the airplane crash. Dr.
Levine did not think any additional treatment was needed for the injuries Jespersen
sustained in 1985.
Responding to one of Jespersen’s questions, Dr. Levine stated that some
symptoms Jespersen felt over the years “would be due to the plane accident,” but said
12
that “the substantial cause would not relate back to that injury.” Dr. Levine agreed
with Dr. Bauer’s opinion that Jespersen’s 1985 compression fracture would not have
affected the L5-S1 disc and stated that if the fracture had affected a disc at all, it would
have affected the L4-L5 disc. Dr. Levine thought Jespersen had “evidence of peripheral
neuropathy, which may be associated with diabetes,” but he did not think the
neuropathy was caused by t he 1985 i njury. Dr. Levine’s deposition testimony was
largely consistent with his report, and he clarified that he did not regard the airplane
crash as a substantial factor in Jespersen’s disc condition.
The endocrinology SIME took place in September 2020. Dr. Mark Silver,
the SIME endocrinologist, said there was “no link of [Jespersen’s] diabetes relating to
his [1985] injury.” He thought that Jespersen’s “treatment with [a steroid] for several
years prior to his diagnosis of type 2 diabetes mellitus would have been a substantial
factor in his development” of that disease. Dr. Silver did not think the diabetes was
12
Dr. Levine’s reference to the “substantial cause” legal standard was
anachronistic. The legal standard for compensability was changed in 2005 to “the
substantial cause,” but that standard applies to injuries that happened on or after the
amendment’s effective date of November 7, 2005. See Huit v. Ashwater Burns, Inc.,
372 P.3d 904, 906-08 (Alaska 2016) (summarizing changes to compensability analysis
in 2005). Because Jespersen’s injury happened in 1985, the legal standard for causation
in this case is “a substantial factor,” as the Board and Commission correctly recognized.
-9- 7698
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disabling. He acknowledged that “chronic pain might aggravate blood sugar control
and diabetes,” but he said that “the primary cause of [Jespersen’s] elevated blood sugars
and poor diabetic control relate[d] to improper medical treatment of his diabetes and
inadequate use of diabetic medications.” He did not think chronic pain itself was a
substantial factor in the development of Jespersen’s diabetes.
In November 2020 the parties agreed to address Jespersen’s claim at a
February 202 1 Board hearing; they agreed to file witness lists, briefs, and evidence “in
accordance with” the Board’s regulations, including 8 AAC 45.112.
Dr. Bauer testified for the hearing at a deposition in February 2021. His
testimony was consistent with his report and provided a more detailed explanation about
why he ruled out the L5 fracture as a possible cause of the L5-S1 disc herniation that
prompted the 2016 surgery. Dr. Bauer explained that the 1985 vertebral fracture was
located on the upper part of the L5 vertebra, near the L4-L5 disc, while the herniated
L5-S1 disc was located below the L5 vertebra. Dr. Bauer’s deposition testimony
included a diagram illustrating the fracture’s location to support his opinion about the
cause of the disc herniation.
Both parties filed their witness lists and pre-hearing memoranda 12 days
before the hearing. For the second time in the proceedings Jespersen’s witness l ist was
deficient; this time it lacked both phone numbers and summaries of testimony for any
13
of the witnesses.
At the hearing’s outset Tri-City Air objected to Jespersen’s witness list
and asked the Board to prohibit Jespersen from presenting any additional witness
testimony because of his noncompliance with the Board’s regulation. Tri-City Air was
particularly concerned because Jespersen listed an unfamiliar witness, Dr. Mariusz
13
See 8 AAC 45.112 (requiring witness lists to include each witness’s
telephone number and “a brief description of the subject matter and substance” of each
witness’s “expected testimony”).
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698
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Ziejewski, but included no information about the substance of his planned testimony.
Tri-City Air told the Board that, based on internet research, it anticipated that Dr.
Ziejewski’s testimony would be “complex.” Jespersen’s attorney revealed that Dr.
Ziejewski was a biomechanical engineer. Jespersen planned to call Dr. Ziejewski as an
expert in biomechanics to counter Dr. Bauer’s opinions.
After hearing argument from both parties, the Board excluded Dr.
Ziejewski’s testimony for several reasons: Jespersen’s witness list did not conform to
the Board’s regulation, which, under the circumstances, required it to exclude the
testimony; Tri-City Air had no notice about the substance of the testimony, such as a
written report; and in the Board’s view, Dr. Ziejewski was “the kind of witness . . . that
th[e] regulation is made for.”
The Board overruled Tri-City Air’s objection in part, allowing the
testimony of some witnesses, including Dr. Michael Carney, D.C., who Jespersen said
would testify “in rebuttal to the deposition of Dr. Bauer.” The Board reasoned that Dr.
Carney had filed medical records in the case so Tri-City Air had some knowledge base
on which to cross-examine him.
Dr. Carney testified that after graduation from chiropractic college he had
“completed a three-year course in chiropractic orthopedics” and had later been
“certified in applied spinal biomechanical engineering.” Dr. Carney explained why he
had made a diagnosis of early degenerative disc disease at L5-S1 in 1987; he said some
of the degeneration then was related to trauma. He thought the L5 fracture from the
1985 crash would continue to stress Jespersen’s back even after the bone healed because
it would cause vertebral misalignment. Dr. Carney opined that the need for the 2016
surgery was “a direct result of injuries sustained in the airplane crash of 1985.” He gave
some details about this opinion, including information that the crash happened during a
right turn, which would have affected Jespersen’s position on impact. He did not think
the changes in Jespersen’s spine could be explained solely by normal aging.
-11- 7698
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Jespersen testified that he had been in chronic pain since the injury and
that he had taken the steroids for back pain and had found them helpful. He
acknowledged that he had continued to work as a bush pilot and mechanic, which
involved significant lifting, from shortly after the injury until 2016; he said he treated
the pain with over-the-counter medicine during that time. He clarified he was seeking
an order that all care for his spine after 2016, including future care, was compensable
and that his claim covered his cervical and thoracic spine as well as his lumbar spine.
He said he was not asking for benefits related t o diabetes, but his attorney “intercede[d]”
to say the claim included any diabetes care necessary for Jespersen to get treatment for
his spine.
During the hearing Jespersen’s attorney received a phone call, which he
told the Board was from Dr. Jensen’s former office manager. The attorney told the
Board he had “reached out to” Dr. Jensen, who was retired, “over the past week or so”
in an attempt to get his testimony, but the former office manager had just called to say
that Dr. Jensen “wouldn’t be able to do anything to help [Jespersen].” The parties
agreed to file written closing arguments about ten days after the hearing.
During the time the record remained open for written closing arguments,
Jespersen petitioned the Board in writing to reconsider its decision to exclude Dr.
Ziejewski’s testimony; he notified the Board that he had taken the deposition of Dr.
Ziejewski following the hearing and asked the Board to supplement the record with it.
The Board issued a lengthy decision that denied Jespersen’s claim for
medical benefits. The Board did not analyze all three steps in the presumption analysis
14
used in pre-2005 workers’ compensation cases after finding that Jespersen “agreed”
14
Before 2005, in order to attach the presumption that a claim was
compensable, the employee needed to produce some evidence to show a link between
his injury and his requested benefit. See Huit, 372 P.3d at 906-07 (summarizing three-
step presumption analysis used in workers’ compensation cases before 2005 statutory
-12- 7698
----------------------- Page 13-----------------------
in his briefing that “Dr. Bauer’s EME report rebutted the statutory presumption of
compensability.” The Board reasoned that in light of this concession, it only needed to
perform the third-step analysis, weigh the evidence, and determine compensability. The
Board recognized that the “substantial factor” legal standard applied to this claim,
meaning that to prevail, Jespersen had to prove by a preponderance of the evidence that
“his 1985 injury remain[ed] a substantial factor in his need for medical treatment for
his spine and for precursor diabetes treatment beginning in 2016.”
After providing a detailed factual summary, the Board assigned weight to
the evidence. The Board discounted Jespersen’s testimony about his chronic pain
because of the lack of medical records supporting his assertion that he suffered chronic
and unrelenting pain from the time he returned to work in 1987 until he finally sought
care for his back pain in 2016. The Board noted the absence of any medical records
from June 1987 to August 2007 in the administrative record and pointed out
discrepancies between Jespersen’s testimony and the available medical records. The
Board concluded that the absence of orthopedic complaints in the medical records and
the inconsistency between the records and Jespersen’s testimony at the hearing undercut
his credibility. The Board considered Jespersen’s testimony about his activities as a
bush pilot and decided that those work activities would be expected to cause aches and
pains in any person who engaged in them. With respect to Jespersen’s reports of pain,
the Board gave greater weight to his medical records and contemporaneous reports than
to his testimony.
amendments). If the employee did so, the employer had to rebut the presumption with
substantial evidence that either eliminated the injury as a cause or provided an
alternative causation explanation that excluded the work injury as a cause. Id. If the
employer rebutted the presumption, the Board moved to the third stage, where the
employee had the burden of proving by a preponderance of the evidence that the work
injury was a substantial factor in his need for medical care. Id. at 907. The Board
weighed the evidence only at the third stage. Id.
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698
----------------------- Page 14-----------------------
The Board reviewed Dr. Carney’s testimony and identified concerns it had
with his opinion, including his reliance on Jespersen’s later reports of chronic pain
during the period between 1987 and 2019 in which Dr. Carney had not seen Jespersen
as a patient. The Board determined that Dr. Carney’s opinions were inconsistent with
other medical records and stated the imaging records more closely corresponded to Dr.
Levine’s opinion about them than to Dr. Carney’s. It gave Dr. Carney’s opinions less
weight than Dr. Levine’s with regard to Jespersen’s degenerative disc disease.
The Board gave Dr. Bauer’s opinions “considerable weight.” The Board
was persuaded by Dr. Bauer’s deposition testimony and reproduced in its decision the
diagram showing the location of the L5 fracture in relation to the L5-S1 disc that Dr.
Bauer had used to illustrate his testimony. The Board thought Dr. Bauer’s opinion was
consistent with the opinions of the multiple doctors who had over the years diagnosed
Jespersen with degenerative disc disease.
The Board gave Dr. Levine’s opinions, which were consistent with Dr.
Bauer’s, “considerable credibility and weight” for some of the same reasons it credited
Dr. Bauer’s opinions. In the Board’s view, even though Dr. Levine’s “initial responses”
about causation were “confused” because Tri-City Air used the incorrect legal standard
in its questions to him, his deposition testimony clarified that his opinions were based
on the correct legal standard.
Based on the weight the Board gave to Dr. Bauer’s and Dr. Levine’s
opinions, it decided Jespersen had not met his burden of proof, concluding that the 1985
injury “was neither a factual cause nor a legal cause” of the medical care he received
for his spine beginning in 2016. It denied Jespersen’s claim for diabetes-related
treatment because he had “not prevailed on his primary claim.”
The Board’s written decision also concluded that its oral rulings refusing
to allow Dr. Ziejewski to testify and refusing to continue the case to cure the lack of
notice to Tri-City Air about Dr. Ziejewski were correct. The Board pointed out that
Tri-City Air had objected to an earlier witness list Jespersen filed because of his
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noncompliance with the same regulation, which meant Jespersen’s attorney had notice
that Tri-City Air might object to another nonconforming witness list. The Board also
concluded Jespersen’s attorney had enough information that he could have complied
with the regulation; the attorney told the Board that he knew before the witness lists
were due that Dr. Ziejewski would be testifying.
Jespersen appealed to the Commission. He questioned Dr. Bauer’s
conclusions by arguing they were not logical and were inconsistent with the articles Dr.
Bauer cited; he contended that Dr. Carney’s causation explanations were the better
ones. Jespersen asked the Commission to reverse the Board’s exclusion of Dr.
Ziejewski’s testimony, alleging that Tri-City Air “hoodwinked the [B]oard in a surprise
move at hearing . . . based upon the alleged failure to disclose the nature and manner of
[Dr. Ziejewski’s] testimony.” He argued Tri-City Air in fact had notice about Dr.
Ziejewski’s testimony because in his pre-hearing brief, filed at the same time as the
witness list, he had disclosed that he would “present evidence from a biomechanical
engineer which will debunk the overreaching testimony of the independent orthopedic
examiners.” He then argued that the exclusion of Dr. Ziejewski as a witness “took away
the ability of [the employee] to show that Dr. Bauer never did rebut the presumption of
compensability,” adding that if Dr. Bauer’s testimony “did indeed rebut the
presumption, then Dr. Ziejewski would have fairly, competently and appropriately
assisted and/or enabled Mr. Jespersen in meeting his burden of persuasion.”
The Commission did not revisit the presumption analysis, observing that
because Jespersen had conceded that Dr. Bauer’s testimony rebutted the presumption,
the Board did not need to explain all steps in the analysis. After summarizing the
evidence and explaining that the Commission is bound by the Board’s credibility
findings and the weight the Board gives to the evidence, the Commission decided that
substantial evidence supported the Board’s decision about the compensability of
medical care for Jespersen’s spine.
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The Commission concluded that the Board did not abuse its discretion
when the Board applied its own regulation to exclude Dr. Ziejewski’s testimony
because (1) there was no question of the regulation’s validity; (2) Jespersen’s witness
list did not comply with regulatory requirements; (3) Tri-City had previously objected
on the same grounds to another of Jespersen’s witness lists, so Jespersen had some
notice in addition to the regulation itself about the need to comply with the regulation;
and (4) Jespersen did not argue that the regulation was “onerous or burdensome.” The
Commission characterized Jespersen’s decision not to arrange Dr. Ziejewski’s
testimony earlier as a “litigation strategy” that “did not work.”
Jespersen argued to the Commission that the Board erred by not allowing
him “time to find and to subpoena” Dr. Jensen, adding that his “testimony and the
Board’s access to that testimony would also have satisfied the obligations of the Board”
to investigate the claim. The Commission analyzed this argument as an appeal of the
Board’s denial of a request for a continuance. The Commission affirmed the Board’s
denial of a continuance because “[a] party’s negligence does not constitute good cause
for requesting a continuance.”
Jespersen appeals.
STANDARD OF REVIEW
“In an appeal from the Commission, we review the Commission ’s
decision and not the Board’s.”15 We independently review the Commission’s
conclusions about whether substantial evidence supported the Board’s decision by
independently reviewing the record and the Board’s factual findings.16 We review the
Commission’s conclusions about the Board’s exercise of discretion by “independently
assess[ing]” the Board’s discretionary rulings and applying “the appropriate standard
15
Mitchell v. United Parcel Serv. , 498 P.3d 1029, 1039 (Alaska 2021)
(citing Alaska Airlines, Inc. v. Darrow , 403 P.3d 1116, 1121 (Alaska 2017)).
16 Smith v. CSK Auto, Inc. , 204 P.3d 1001, 1007 (Alaska 2009).
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17
of review.” The Board’s application of its regulations to the facts of a case is reviewed
18
for abuse of discretion. “We will find an abuse of discretion when the decision on
19 “Substantial evidence
review is ‘arbitrary, capricious, or manifestly unreasonable.’ ”
is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”20
DISCUSSION
A. Jespersen Waived The Argument That Tri-City Air Did Not Rebut
The Presumption Of Compensability.
Jespersen argues on appeal that Tri-City Air did not rebut the presumption
of compensability regarding medical treatment for his ongoing back pain. Tri-City Air
responds that Jespersen waived this argument by failing to raise it before the Board or
the Commission.
We agree with Tri-City Air. In fact, Jespersen affirmatively waived this
argument when he stated in his written closing argument that “Dr. Bauer’s report
provided the carrier with substantial evidence to overcome the presumption of
21 We therefore do not reach the issue of whether Tri-City Air rebutted
compensability.”
the presumption of compensability.
17 Id.
18 Griffiths v. Andy’s Body & Frame, Inc., 165 P.3d 619, 623 (Alaska 2007)
(quoting Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960 (Alaska 1998)).
19 Mitchell, 498 P.3d at 1039 (quoting Alaska State Comm’n for Hum. Rts.
v. United Physical Therapy, 484 P.3d 599, 605 (Alaska 2021)).
20 Id. (quoting Vue v. Walmart Assocs., Inc., 475 P.3d 270, 279 (Alaska
2020)).
21 Even if Jespersen had not waived this argument, it would fail. As we
explain below, Dr. Bauer’s and Dr. Levine’s opinions were substantial evidence
supporting the Board’s ultimate conclusion that Jespersen’s need for surgery was not
work-related. These opinions, when considered in isolation, necessarily rebutted the
presumption that the plane crash was a substantial factor in Jespersen’s need for
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B. The Commission Correctly Concluded That Substantial Evidence In
The Record Supported The Board’s Decision.
Jespersen argues that the Commission erred by affirming the Board’s
decision because substantial evidence did not support it. As Tri-City Air points out,
much of his argument is based on evidence to which the Board gave little or no weight.
Tri-City Air contends the Commission correctly concluded that substantial evidence
supported the Board’s decision because the Board gave more weight to Dr. Bauer’s and
Dr. Levine’s opinions, which it found more consistent with the imaging studies in the
record, than to Dr. Carney’s.
The Commission is bound by the Board’s decisions about the weight of
22
the evidence and must apply the substantial evidence standard of review to the
Board’s findings of fact.23
We review the Commission’s conclusion that substantial
evidence supports the decision by independently reviewing the record and the Board’s
findings to determine whether those findings are indeed supported by substantial
24
evidence. When using the substantial evidence standard of review, “[w]e neither
reweigh the evidence nor choose between competing factual inferences”; “our
treatment. See Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004) (explaining same
evidence may both rebut presumption of compensability and show by preponderance
of evidence that injury was not work-related); Huit v. Ashwater Burns, Inc., 372 P.3d
904, 906-07 (Alaska 2016) (explaining pre-2005 analysis for whether employer
rebutted presumption of compensability, requiring employer to produce “substantial
evidence” that, viewed in isolation and without assigning it weight, “either (1) provided
an alternative explanation excluding work-related factors as a substantial cause of the
disability, or (2) ‘directly eliminated any reasonable possibility that employment was a
factor in causing the disability’ ” (quoting Tolbert v. Alascom, Inc. , 973 P.2d 603, 611
(Alaska 1999), superseded by statute, ch. 10, § 9, FSSLA 2005)).
22
Patterson v. Matanuska-Susitna Borough Sch. Dist., 523 P.3d 945, 955
(Alaska 2022).
23
AS 23.30.128(b).
24
Smith v. CSK Auto, Inc. , 204 P.3d 1001, 1007 (Alaska 2009).
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determination is limited only to whether such evidence exists.”25
“We have held that
‘if the Board is faced with two or more conflicting medical opinions — each of which
constitutes substantial evidence — and elects to rely upon one opinion rather than the
other, we will affirm the Board’s decision.’ ”26 A choice between conflicting medical
opinions is precisely what the Board faced here. The Board had the conflicting expert
opinions of Dr. Carney on one side and Dr. Bauer and Dr. Levine on the other; it chose
to rely on Dr. Bauer’s and Dr. Levine’s medical opinions.
Dr. Bauer provided an opinion that excluded work-related factors as a
substantial cause of Jespersen’s ongoing back pain. Dr. Bauer identified degenerative
disc disease, “a progressive disease of life,” as an alternative cause of Jespersen’s pain,
and Dr. Bauer specifically stated that the degenerative disc disease was “neither caused
by nor aggravated by” the 1985 airplane crash. The Board decided Dr. Bauer’s opinion
was entitled to more weight than Jespersen’s evidence. Moreover, the Board credited
Dr. Levine’s testimony, which was consistent with Dr. Bauer’s and further contributed
to the substantial evidence supporting the Board’s decision. The Commission thus
correctly concluded that substantial evidence supported the Board’s decision.
C. Jespersen’s Claim For Diabetes Care Was Properly Denied.
Jespersen appears to make two arguments in his opening brief about
medical care for his diabetes. He argues that the administrative decision denying
compensability for his diabetes care “is wrong as a matter of law, and is clearly
erroneous as a factual finding.” While Jespersen’s argument is not entirely clear, he
seems to be asserting that his diabetes care was compensable independent of his primary
claim for spinal surgery and treatment because his steroid prescription was for back
pain and that medication was a cause of his diabetes. He also contends that his diabetes
25 Doyon Universal Servs. v. Allen , 999 P.2d 764, 767 (Alaska 2000).
26 Id. at 767-68 (quoting Yahara v. Constr. & Rigging, Inc., 851 P.2d 69, 72
(Alaska 1993)).
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care was compensable “for a second reason”: he “cannot get treatment for his spine
until he brings his diabetes under control.” Tri-City Air responds that Jespersen
“waived his argument that Tri-City did not rebut the presumption of compensability for
his diabetes” and thus the only issue that needs to be resolved is whether he proved the
claim by a preponderance of the evidence.
The Board found that Jespersen was “not seeking any medical benefits
related to diabetes directly” but “said he needs diabetes treatment before his spine can
be addressed and such treatment is included in his claim against” Tri-City Air. This
finding is supported by multiple representations made on Jespersen’s behalf. For
example, at the final hearing, on February 18, 2021, the Board chair asked Jespersen
himself, “And just to be clear, you’re not asking for any benefits, medical benefits,
related to diabetes, is that correct?” Jespersen said, “That’s correct, yes,” but his
attorney “intercede[d]” and said, “Mr. Jespersen isn’t taking the position that his
diabetes came from the plane crash even though there’s evidence to suggest that. But
right now his diabetes needs to be treated in order to treat his back.” This position
appears to have been the same one articulated at the SIME hearing in 2019.
The claim for diabetes care that Jespersen presented to the Board was
dependent on the compensability of his spinal surgery and treatment. We have affirmed
the Board’s rejection of Jespersen’s medical claim for his spinal care, thus his claim for
diabetes care as a necessary condition for compensable medical care for his back was
also properly rejected. To the extent Jespersen is now arguing that his diabetes care is
compensable independent of his claim for spinal surgery and treatment, he has waived
27
review of that issue because he did not present such a claim to the Board.
27
See Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska 1996)
(holding that employee waived argument that she was entitled to permanent partial
disability benefits because she failed to raise issue before Board or in her initial
administrative appeal).
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The Commission did not err in affirming the Board’s denial of Jespersen’s
claim for diabetes care.
D. The Commission Correctly Concluded That The Board Did Not
Abuse Its Discretion By Excluding Dr. Ziejewski’s Testimony.
Jespersen argues that the Board’s decision to exclude Dr. Ziejewski’s
testimony was an unnecessarily harsh sanction in light of Jespersen’s view of the
importance of Dr. Ziejewski’s testimony and the alternative steps the Board could have
taken to allow the testimony while also permitting Tri-City Air the opportunity to
meaningfully cross-examine Dr. Ziejewski. Jespersen suggests that the exclusion of
Dr. Ziejewski’s testimony deprived him of due process. Tri-City Air argues that the
Board’s regulation required the Board to exclude the testimony, so the Board did not
err by following its regulation.
The Board’s regulation on the filing of witness lists requires disclosure of
certain information, including “the witness’s address and phone number, and a brief
28
description of the subject matter and substance of the witness’s expected testimony.”
The regulation also provides in pertinent part, “If a party directed at a prehearing to file
a witness list . . . files a witness list that is not in accordance with this section, the
29
.” The
[B]oard will exclude the party’s witnesses from testifying at the hearing . . .
only exceptions allow the admission of the testimony of a party or “deposition
testimony completed, though not necessarily transcribed, before the time for filing a
witness list.”30
Jespersen was directed at a prehearing to file a witness list in accordance
with Board regulations. He filed his witness list for the final hearing in February 2021,
indicating that witnesses would testify “by Zoom or by telephone if located outside
28
8 AAC 45.112.
29
Id.
30
Id.
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Anchorage, AK.” But Jespersen’s witness list did not include phone numbers for any
of the witnesses, nor did it include “a brief description of the subject matter and
31
substance of the witness’s expected testimony,” as the regulation requires.
The regulation sets out the penalty for failing to comply with its
requirements: with two exceptions, the Board “will exclude the party’s witnesses from
32
testifying at the hearing.”
However, despite the deficiencies in Jespersen’s witness
list, the Board allowed some of Jespersen’s other witnesses to testify, including Dr.
Carney. The Board thus did not completely prevent Jespersen from offering expert
testimony to support his claim.
The Board did not abuse its discretion by excluding Dr. Ziejewski’s
testimony. First, as the Board noted, Dr. Ziejewski had confirmed that he would be
able to testify as an expert in Jespersen’s case the day before the witness lists were due,
so Jespersen had adequate time to comply with the regulation by summarizing the
purpose of Dr. Ziejewski’s testimony. Additionally, Tri-City Air made the same
objection about another of Jespersen’s witness lists at an earlier hearing, which should
have alerted him to both the regulation’s requirements (which he should have known
anyway) and the likelihood that Tri-City Air would make objections about
nonconforming filings. Moreover, as the Board pointed out, Jespersen knew that
biomechanics was an issue before the Board at the hearing because Dr. Bauer’s 2017
report relied on biomechanical studies. Copies of the articles Dr. Bauer mentioned were
filed with the Board in 2019, and Jespersen’s attorney told the Board he was aware in
2017 that Dr. Bauer relied on principles of biomechanics in his opinion.
Finally, Jespersen’s attorney indicated when he filed the affidavit of
readiness for hearing in January 2019 that he had “obtained necessary evidence” and
31
Id.
32
Id. (emphasis added).
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33
was then “fully prepared for a hearing.” At the 2021 hearing a Board panel member
asked Jespersen’s attorney when he “first became aware that Dr. Bauer intended to rely
on principles of biomechanics to explain Mr. Jespersen’s condition”; in response the
attorney acknowledged that Dr. Bauer’s 2017 report discussed biomechanics, so he was
first aware of the issue in 2017. In light of this answer the Board was not required to
credit the attorney’s suggestion that he was unaware of the potential need for an expert
in biomechanics until he took Dr. Bauer’s deposition in 2021.
Nothing i n the record persuades us that the Board abused its discretion by
excluding Dr. Ziejewski’s testimony. To hold otherwise would be unfair to Tri-City
Air. Jespersen’s failure to comply with the Board’s regulation left Tri-City Air without
notice of Dr. Z iejewski’s expert testimony, without which it would not have been able
to adequately prepare for cross-examination at the hearing.
Nor did the Board deprive Jespersen of due process by excluding the
testimony. Jespersen had ample notice of the substantive and procedural issues at the
34
hearing, and he had an opportunity to be heard on them. Jespersen had an obligation
to marshal evidence in support of his claim and to do so in a timely manner. Jespersen’s
attorney recognized as much when he declared by affidavit that he had completed the
necessary discovery, had obtained the necessary evidence, and was prepared for the
35
hearing. Under the circumstance of this case, Jespersen’s inability to call the expert
witness of his choice appears to have been the result of a failure on the part of his
33
See AS 23.30.110(c) (setting out requirements for affidavit requesting
Board hearing).
34
See Matanuska Maid, Inc. v. State, 620 P.2d 182, 192-93 (Alaska 1980)
(“The crux of due process is opportunity to be heard and the right to adequately
represent one’s interests. Adequate notice is the common vehicle by which these rights
are guaranteed.” (citations omitted)).
35
See AS 23.30.110(c).
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attorney. The Board did not deprive Jespersen of due process by enforcing its
regulation.
E. The Board Did Not Err By Failing To Secure Dr. Jensen’s Testimony
On Its Own.
Jespersen contends that the Board erred in failing “to secure” Dr. Jensen’s
36
testimony before it closed the record. Jespersen does not explain this argument,
although he suggested to the Commission that the Board should have secured Dr.
Jensen’s testimony under AS 23.30.135, which gives the Board discretion to investigate
claims in the manner it chooses. Because Jespersen has not provided us any legal
reasoning to support the argument that AS 23.30.135 or another source of law required
37
the Board to secure the testimony of a particular witness, that argument is waived.
Even if the argument were not waived, it would have no merit because the
Board did not have an obligation to secure Dr. Jensen’s testimony. Dr. Jensen provided
yes/no answers to causation questions from Jespersen’s attorney. After Tri-City Air
filed a request to cross-examine Dr. Jensen, Jespersen had an obligation to produce him
as a witness at either the hearing or at a deposition or risk having the Board exclude his
38
causation opinion. It is evident Jespersen’s attorney knew how to subpoena a witness
36
The Commission interpreted a similar argument Jespersen made to it as
an argument that the Board erred in denying a continuance request made at the final
hearing. Jespersen did not present an argument to us about the denial of a continuance,
so we do not address it.
37 See Patterson v. Matanuska-Susitna Borough Sch. Dist., 523 P.3d 945,
958-59 (Alaska 2022) (holding that we would not consider inadequately briefed
claims); Butts v. State, Dep’t of Lab. & Workforce Dev., 467 P.3d 231, 245 (Alaska
2020) (holding argument is inadequately briefed, despite citation to legal authority, if it
is presented without argument or explanation applying authority to facts of case on
appeal and “we cannot discern the legal theory [the party] advances”).
38 We have held that the statutory right to cross-examination is absolute and
applies to Board proceedings. See Com. Union Cos. v. Smallwood, 550 P.2d 1261,
1264-65 (Alaska 1976). The Board’s regulation at 8 AAC 45.052(c) addresses requests
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for a Board hearing because he subpoenaed Dr. Bauer in 2019. The record reflects that
Dr. Jensen declined to assist Jespersen in his claim. Jespersen provides no explanation
for his failure to secure Dr. Jensen’s testimony in the nearly two years that elapsed
between Tri-City Air’s request for cross-examination and the hearing. His failure to
secure Dr. Jensen’s testimony did not create an obligation for the Board to do so.
CONCLUSION
We AFFIRM the Commission’s decision.
for cross-examination of authors of medical reports. The Board has interpreted the law
as requiring exclusion of a medical report if its author is not made available for cross-
examination. See Weaver v. ASRC Fed. Holding Co., AWCB Dec. No. 17-0124, 2017
WL 5052953, at *28-30 (Oct. 27, 2017) (explaining Smallwood objections and
exclusion), aff’d, 464 P.3d 1242 (Alaska 2020).
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