ALASKA WORKERS' COMPENSATION BOARD



ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

| |) | |

|ROBERT (MIKE) FERGUSON, |) | |

| |) | |

|Employee, |) |FINAL DECISION AND ORDER |

| |) | |

|Applicant, |) |AWCB Case No. 199825153 |

| |) | |

|v. |) |AWCB Decision No. 05-0279 |

| |) | |

|CHUGIAK SENIOR CITIZENS, INC., |) |Filed with AWCB Anchorage, Alaska |

| |) |on October 27, 2005 |

|Employer, |) | |

| |) | |

|and |) | |

| |) | |

|ALASKA INSURANCE GUARANTY |) | |

|ASSOCIATION, |) | |

|Insurer, |) | |

| |) | |

|Defendants. |) | |

The Alaska Workers’ Compensation Board (“Board”) heard the employee’s request to set aside a Compromise and Release Agreement approved by the Board on March 7, 2001, and the employee’s claim for payment of medical expenses, on September 29, 2005, at Anchorage, Alaska. The employee appeared pro se. Attorney Michael Budzinski represented the employer and insurer. Laurie McCallum, adjuster appeared as a witness on behalf of the insurer. The record closed at the conclusion of the hearing.

ISSUES

1. Should the Board set aside the March 7, 2001 Compromise and Release Agreement previously approved by the Board?

2. Is the employer responsible for medical costs incurred by the employee after June 10, 2004

pursuant to AS 23.30.095?

SUMMARY OF THE EVIDENCE

I. EVIDENCE

The employee was employed by the employer as a driver. The employee was injured, at age 41, on October 16, 1998, when he slipped on ice and fell on his back, striking his head.[1] According to his claim, he was “knocked unconscious.”[2] He also claimed injuries to his neck, upper back and right elbow arising out of the same falling incident.

The employee saw Robert Moss, M.D., at Health South in Anchorage beginning on October 16, 1998. Dr. Moss prescribed medications and recommended further testing.[3]

The employee also saw Lawrence Smith, M.D., at Health South on January 4, 1999.[4] Dr. Smith recommended medications and physical therapy. He recommended a neurological evaluation.[5] He indicated that the employee was not to drive until after his evaluation was completed.[6]

An MRI[7] of the cervical and thoracic spine done February 5, 1999 was normal.[8]

Dr. Lawrence Smith referred the employee to Mary Downs, M.D., a neurologist. She saw the employee on February 23, 1999. At that time, she recommended a head MRI and EMG[9] testing and headache treatments.[10] She again saw the employee on March 2, 1999. She recommended physical therapy and cervical traction.[11]

On February 25, 1999, the employee underwent electromagnetic testing by Kenneth Pervier, M.D.[12] The employee was also referred for a brain MRI and the results were normal.[13] On February 26, 1999, the employee’s benefits for alleged head injury were controverted. The basis for this controversion was the absence of medical evidence to support the relationship between the employee’s injury and his current symptoms which began three months after the injury.[14]

On March 12, 1999, the employee filed a workers’ compensation claim seeking TTD from February 23, 1999 and continuing.[15]

On March 22, 1999, the employee again saw Lawrence Smith, M.D., who diagnosed carpal tunnel syndrome. He also recommended a possible work hardening program.[16] On March 30, 1999, Dr. Smith recommended that the employee see an orthopedic surgeon for his carpal tunnel condition.[17]

On April 5, 1999, the employee saw Paul Worrell, M.D. The employer controverted $182 in charges in its June 11, 1999, controversion based on an excessive change of physician under AS 23.30.095(d).[18] On April 19, 1999, Dr. Worrell wrote a letter to the Board complaining that the employee’s workers’ compensation benefits had been cut off.[19]

The employee’s TTD benefits beyond March 12, 1999 and for future medical treatment, physician therapy and prescription medication were controverted on April 12, 1999.[20] The basis for the controversion was lack of evidence of disability from work relative to October 16, 1998 work-related head, neck and low back injury and that Dr. Smith’s March 22, 1999 report showed carpal tunnel syndrome which was unrelated to the claim.[21]

On April 16, 1999, the employee filed a workers’ compensation claim for TTD, PPI, medical costs and attorney’s fees and costs.[22]

On April 16, 1999, Dr. Allen Smith recommended to the employer that the employee avoid frequent use of his right upper extremity due to arm pain and that he avoid transfers of heavier patients.[23]

On May 17, 1999, the employee was seen at the employer’s request by Shawn Hadley, M.D.[24] She diagnosed a slip and fall on October 14, 1998, which caused a cervical strain without symptoms of cervical radiculopathy. She also noted right elbow pain which she did not believe was related to the work injury. She also noted right carpal tunnel syndrome which was unrelated to the work injury. She recommended a two-week course in physical therapy and trial of home traction followed by an independent strengthening exercise program. She did not believe further diagnostic testing was indicated. She felt he could return to work after the physical therapy as long as he avoided heavy lifting. She anticipated medical stability within the next month. She anticipated no permanent impairment.[25]

A controversion of the employee’s TTD and Temporary Partial Disability (TPD) benefits was filed May 18, 1999. This was based on Dr. Allen Smith’s May 11, 1999 report.[26] Dr. Smith referred the employee to Michael James, M.D.

On June 8, 1999, the employee was seen by Dr. James. He performed electrodiagnostic testing on the employee and provided treatment recommendations.[27] He diagnosed chronic neck pain, underlying degenerative changes of the cervical spine, and carpal tunnel syndrome, right greater than left. He found no evidence of cervical radiculopathy. There is no evidence that Dr. James’ view was affected by the existence of a controversion of the employee’s benefits or by contact with the insurer. Dr. James recommended a work reconditioning program for the employee’s neck pain. Dr. James’ report was issued about three months late.

On July 12, 1999, Dr. Allen Smith wrote a letter to the Board indicating that the employee’s neck, upper back and upper right extremity pain was related to his October 1998 injury and that he was not medically stable. He recommended physical therapy and further referral to a neurologist.[28]

On July 27, 1999, the employee underwent a cervical spine MRI which showed minimal osteophyte formation at C5 and C6. The results were otherwise negative. There was no evidence of disc space narrowing or of osteophytic encroachment into the neural foramina.[29]

On September 22, 1999, the employee was seen by Brian Trimble, M.D., on referral from Dr. Smith.[30] He suspected myofascial pain syndrome involving the cervical and thoracic spine. He gave the employee trigger point injections.

The employee filed claims for various benefits on July 14, 1999.[31] The employee received TTD benefits for the period from February 23, 1999 through March 9, 2001.[32]

On July 17, 1999, the employer filed a petition for a SIME due to the conflict in medical opinion between Dr. Hadley and Dr. Allen Smith.[33] On November 9, 1999, the Board ordered an SIME.[34]

The employee saw R. David Beck, M.D., on December 20, 1999. He recommended an isotope scan and laboratory studies.[35] On December 23, 1999, the employee had a neck and back bone scan which was normal.[36] Dr. Beck again saw the employee on December 30, 1999, for chronic headache and neck pain. He considered the employee to be suffering from chronic pain syndrome secondary to the industrial injury of October 1998.[37] He recommended evaluation by a pain specialist.

On January 5, 2000, the employee was seen by the SIME physician, David Spindle, M.D. He concluded that the employee had a probable C5-C6 disk protrusion as evidenced by the decrease in grasp and the decrease in radial reflexes.[38]

On February 18, 2000, the employee saw Allen T. Smith, M.D., for pain in his neck and upper arm.[39] He recommended that the employee undergo physical therapy and a possible trigger point injection.

On April 21, 2000, the employee underwent an MRI of the cervical spine.[40] On April 25, 2000, he was referred by Dr. Allen Smith for a neurosurgery evaluation.[41] However, no significant disc disease was seen on the MRI of the cervical spine. Instead, EMG testing was recommended.[42] On April 27, 2000, the April 21, 2000 cervical spine was compared with one done July 27, 1999. The impression was degenerative disc changes C5-6, including mild posterior osteophytic spurring and minimal degenerative changes C6-7.[43]

On June 10, 2000, the employee’s condition was again reviewed by the SIME physician, Dr. Spindle.[44] He noted a problem between the C5/C6 vertebrae. He gave the employee a 19% total body PPI rating which he later reduced to 15%.[45] He did not believe the employee could go back to his prior occupation as a driver. He felt the employee needed to be retrained.[46]

On June 30, 2000, the employee filed another workers’ compensation claim.[47] He sought TTD from June 9, 2000 forward, 19% PPI, medical and medical transportation costs, penalty, interest, frivolous controversion and attorney’s fees and costs.

In July 2000, Dr. Allen Smith referred the employee to the Virginia Mason Pain Management Clinic.[48] On July 27, 2000, the employee’s referral to the Virginia Mason Pain Clinic was controverted as the employer found that the May 17, 1999 EME[49] had recommended further treatment of two weeks physical therapy and two weeks of home exercise.[50]

On August 7, 2000, Dr. Allen Smith wrote a statement to whom it may concer. He indicated that the employee suffered from chronic right neck and right upper extremity pain and that the employee’s condition was relatively stable.[51]

On August 17, 2000, the employee filed a petition with the Board for medical transportation costs.[52]

On August 21, 2000, Dr. Allen Smith wrote a letter to whom it may concern. He indicated that the employee suffered from chronic right neck and right upper extremity pain which had been refractory to multiple conservative treatments. He indicated the employee’s symptoms included neck pain, right arm pain and headaches. Dr. Smith reiterated his recommendation that the employee be referred to the Virginia Mason Pain Clinic.[53]

On November 2, 2000, the physician who was in charge of the employee’s treatment, Thomas Williamson-Kirkland, M.D., reported that the employee benefited from his treatment at the Virginia Mason Clinic.[54]

On December 5, 2000, the employee filed another workers’ compensation claim for a 15% PPI rating, medical costs and medical transportation costs, penalty, interest and attorney’s fees and costs.[55]

On December 28, 2000, the employer controverted any PPI in excess of six percent based on the six percent whole person rating by Dr. Williamson-Kirkland.[56]

On January 26, 2001, the employee was determined eligible for reemployment benefits.[57] On February 2, 2001, the employer filed a petition appealing the RBA eligibility determination.[58]

Disputes arose as to the employee’s entitlement to TTD, PPI and reemployment benefits. The employee was represented by attorney Robert Rehbock at the time. In order to resolve these disputes, the employee and his counsel, as well as the employer and its counsel entered into a compromise and release agreement. The employee was paid $25,000.00 to resolve disputes involving PPI, TTD, compensation rate, timeloss and reemployment benefits. The employee waived his entitlement to reemployment benefits. However, his entitlement to future medical benefits was not waived.[59] The agreement included the following provision as part of the employee’s signature page:

I am the employee named in this Compromise and Release. I have read and understand what is stated in this document. To the best of my knowledge, the facts stated in this Compromise and Release are true and correct. No representations or promises have been made to me by the employer or carrier which have not been set forth in this document. I have signed the Compromise and Release freely and voluntarily for the purpose of settlement.

The document indicates that the employee signed it on February 6, 2001.[60] The Board subsequently approved the Compromise and Release Agreement on March 7, 2001. There is no evidence of fraud or duress in the calculation of the employee’s compensation rate.

On October 22, 2001, the employee was seen by Frank Gonzales, M.D., a clinical psychologist at Southcentral Foundation. The employee’s working memory was shown to be in the borderline impaired range. However, the rest of the results were relatively normal.[61]

On November 2, 2001, the employee underwent another cervical MRI. It showed mild degenerative disc disease at several levels with slight degenerative joint disease at C5-6 as well. No focal herniation, spinal stenosis or spinal cord irregularity was identified.[62]

On March 5, 2002, Dr. Allen Smith completed a medical report for financial assistance from the State of Alaska. He opined that the employee was not disabled.[63]

The employee eventually was no longer seen at the Alaska Native Medical Center. However, he was referred by Dr. Alan Smith to Noel Goldthwaite, M.D., Spine Care Medical Group, in Daly City, California. She saw the employee on May 10, 2002, and diagnosed cervical disc degeneration, mild traumatic brain injury and facet syndrome.[64] She again saw the employee on September 5, 2002, and recommended neuropsychological testing for the employee.[65] She did not continue to see the employee due to the distance involved between where she was located and where the employee resided.

On September 24, 2002, the employee saw Julie Wilson, M.D., a physician in Alaska, for a disability determination for interim assistance.[66] She recommended that the employee seek possible facet injections.

On October 22, 2002, the employee filed another claim with the Board seeking TTD, permanent total disability (PTD), PPI, medical costs, penalties and interest based on traumatic brain injury.[67] The claims for the non-medical benefits were denied based on the March 1, 2001 Compromise and Release Agreement.

On November 7, 2002, the employee treated with Robert A. Savala, M.D., in Daly City, California.[68] The employee underwent a cervical discogram and Dr. Savala noted that the most severe symptoms were at the C5-6 and C6-7 areas.

On May 5, 2003, the employee was seen at a Native clinic outside of Bremerton, Washington by David L. Beck, M.D.[69] He recommended a neurosurgical and pain management evaluation.

The employee was also seen on June 4, 2003 by Lynn Staker, M.D., in Bremerton, Washington, to evaluate his eligibility for public assistance.[70] She did not believe he was employable. She recommended an updated cervical MRI and neurological consultation with EMG testing to determine if he had some type of brain injury.[71]

On June 19, 2003, the employee filed another workers’ compensation claim seeking TTD, PTD, PPI, medical costs and medical transportation expenses as well as penalty, interest and attorney’s fees and costs.[72]

In August 2003, the employee was seen for medical care in Oklahoma. On August 6, 2003, the employee underwent an MRI of the cervical spine. It showed minimal disc bulging at the C5-C6 level without central spinal canal stenosis or neural foraminal encroachment and atypical appearance of the anterior aspect of the T3 vertebra likely congenital or developmental in nature without evidence of acute abnormality.[73] On August 11, 2003, he was to be seen by John Payne, M.D., at the Durant Clinic. However, the doctor never saw the employee. The employee received care at an emergency room at Ada hospital in Oklahoma.

On September 16, 2003, the employee was seen at the Medical Center of Southeastern Oklahoma. The recommendation was that the employee obtain chronic pain management.[74]

The employee executed another Partial Compromise and Release Agreement on October 1, 2003.[75] The employee was again represented by Mr. Rehbock. The settlement involved the employer’s payment of $2,549.00 in medical transportation expenses and $250.00 in attorney’s fees. The agreement included the employee’s signature below the advisory paragraph worded identically to the paragraph cited at page 8.[76]

The employee was also seen at Osteopathic Medical Clinic in Ft. Worth, Texas. The date of this emergency visit was January 15, 2004.[77] The diagnosis was chronic neck pain. He was not provided medications. The employee felt this facility was not helpful.[78]

On February 16, 2004, the employee saw Munawar Heider, M.D., at Kaner Medical Clinic in Ft. Worth, for a disability determination. The diagnosis was cervical radiculopathy.[79]

On February 24, 2004, the employee filed another claim for benefits.[80] He sought TTD, TPD, and PPI for traumatic brain injury, medical benefits and medical transportation costs and frivolous controversion as well as any penalty and interest due.

On March 19, 2004, another controversion was filed for all benefits other than medical based on the employee’s waiver of all benefits under the March 7, 2001 Compromise and Release Agreement.[81]

On March 25, 2004, the employee underwent another cervical MRI.[82] The impression included a description of signal decrease from the T1-2 disc suggesting some degree of desiccation but the disc was otherwise unremarkable. The report also noted C6-7 exhibited mild annulu bulging and mild signal decrease suggesting early desiccation. No encroachment was noted. C5-6 also exhibited mild annulus bulging protruding posteriorly 1-2 mm mildly impressing and effacing the anterior margin of the thecal sac. However, there was no impression on the cervical spinal cord or encroachment upon either neural foramen. Mild degenerative type spurring of the anterior interior margin of C5. The C4-5 appeared normal. At C3-4 there was minimal bulging slightly effacing the anterior margin of the thecal sac. Posterolateral osteophytes toward the left possibly with a mild asymmetric annular bulge protrude posteriorly and impress the thecal sac toward the left. This condition appeared to be from osteophytes. The C2-3 disc was unremarkable.[83]

On March 30, 2004, the employee filed a petition with the Board to overturn the March 7, 2001 Compromise and Release Agreement.[84]

The employee was seen by Deepak V. Chavda, M.D., on April 26, 2004. Among other recommendations, the employee was suggested as a candidate for a chronic pain management program.[85] Dr. Chavda also examined the employee’s radiographic studies and noted spondylitic changes of C3 through C6 and lessening of the normal lordotic curve.[86]

On June 10, 2004, the employee was seen at the Kaner Medical Group in Bedford, Texas, by Randall E. Hayes, D.O.[87] The diagnosis was cervical radiculopathy, cervical sprain and memory loss. Dr. Hayes referred the employee to a chronic pain specialist.[88] The insurer’s witness, Ms. McCallum, testified treatment with the chronic pain specialist was authorized by the adjuster but the employee did not see this provider.[89]

The next provider the employee saw was John Peter Smith Clinic in Ft. Worth. He saw Thomas White, M.D., on July 28, 2004. The employee submitted a claim for $97.00 for services rendered at this clinic November 20 or 24, 2004.[90] This visit was not authorized by the adjuster as by this time the employee had seen too many providers and he had not followed Dr. Hayes’ recommendation that he enter into a pain management program. On August 25, 2004, the employee saw Dempsy Gordon, M.D., and received a prescription.[91] Neither of these physicians could be considered treating physicians.

On September 16, 2004, the employee’s benefits were controverted due to an excessive change of physicians.[92] The basis was medical care and prescriptions were not provided by treating physician. The employer considered Dr. Randall Hayes to be the employee’s treating physician. He had requested authorization for pain management referral to address narcotic medication issues on June 10, 2004. The employee, according to the employer, had not complied with this medical recommendation and had not been seen by Dr. Hayes after the recommendation was made. The employer went on to indicate the treatment and prescriptions on July 28, 2004 by Dr. White and on August 25, 2004 by Dr. Gordon were not provided by the designated treating physician as per 8 AAC 45.082(2).

On November 24, 2004, the employee was seen at the Phoenix Indian Medical Center. He underwent a chest and left ribs x-ray. No acute disease was found.[93]

On December 3, 2004, the employee’s benefits were again controverted.[94] This time the basis for the controversion was the employee’s refusal to sign releases pursuant to AS 23.30.107 and AS 23.30.108.

On December 9, 2004, the employee was seen at PCMC Family Practice South. He was referred back to the Alaska Native Medical Center.[95] On December 10, 2004, the employee was seen at PCC Behavioral Health Encounter for pain disorder associated with both psychological and medical condition, psychic factors associated with disease and depressive disorder. He was prescribed 100 oxycodone.[96]

On January 19, 2005, the employee had views of his cervical MRI evaluated. The impression was “stable mild cervical spondylosis.”[97] Another cervical MRI was done January 31, 2005. It showed mild spondylitic degenerative changes of the cervical spine, most severe at the C5-C6 level.[98] He was seen again at the same facility on December 21, 2004, and prescribed 20 Percocet to last until he returned to Alaska. He was encouraged to follow up on pain assessment and reduction in narcotics.[99]

On April 14, 2005, the employee was found to have a medical condition severe enough to meet the criteria for social security disability.[100] The employee was seen by Timothy Coalwell, M.D., on referral from Dr. Gerlay of Aurora Pain Management. His assessment was status post fall 10/98 with traumatic head injury and neck pain with mild herniation and chronic tinnitus.[101]

On April 15, 2005, the employee filed another claim for approximately $4,000.00 in medical benefits.[102]

On May 16, 2005, the employee underwent evaluation at the request of the employer by Dr. Downs. He was not found to evidence symptoms of brain damage although a formal cognitive evaluation was not performed. Dr. Downs noted that the employee did not complain of cognitive issues at his initial evaluation when he saw her in 1999. She saw no evidence during her 2005 evaluation which made her suspect significant traumatic brain injury.

On May 31, 2005, another controversion of the employee’s benefits was filed covering medical care and prescriptions provided by Gary Gerlay and Katherine Olsen, ANP.[103] The controversion of Gary Gerlay was based on suspension of his license to practice medicine and the controversion of care provided by Katherine Olsen was that she does not meet the definition of “physician” under AS 23.30.395(24).

On June 14, and June 27, 2005, the employee was again seen by Dr. Coalwell.[104] He diagnosed chronic neck pain, neuritis, depression and tinea. He referred the employee to a pain clinic

On July 25, 2005, the employee saw Susan Bertrand, M.D., for neck pain and right arm pain. She recommended he return in one month for evaluation for either cervical effusion or potential disk replacement.[105]

EMPLOYEE’S POSITION

A. Employee Request to set aside March 7, 2001 Compromise and Release Agreement

The employee claims the March 7, 2001 Compromise and Release Agreement should be set aside because:

1. The insurer “coerced” Dr. James in rendering his opinion by sending Dr. James a copy of the controversion notices;

2. The compensation rate was incorrectly calculated;

3. The employee was not adequately represented by his attorney, Mr. Rehbock, at the time he entered into the March 7, 2001 Compromise and Release Agreement; and

4. The employee was not competent to make decisions due to an allegedly undiagnosed brain injury.

B. Medical Expenses

The employee contends that his moves from Alaska to Washington State to Oklahoma, Arizona and Texas were made in an effort to obtain needed medical care that was not available to him in Alaska and, therefore, medical benefits should not be barred due to an excessive change of physicians. He also seeks payment for various medical bills incurred after June 10, 2004 including a $97.00 bill from John Peter Smith Clinic, and a $626.50 bill from Working Rx Prescriptions. The employee also submitted a bill for $198.00 from Texas Medicine Resources and another for $92.50 from Harris Methodist NW. These two were not paid because they were not authorized by Dr. Hayes, the employee’s treating physician and because they again represent unauthorized changes in physician. Two other, one for Sherman Radiology Association and another from Radiology Associates of Tarrant County were paid by the employer.

III. EMPLOYER’S POSITION

The employer maintains that the employee must show by clear and convincing evidence that the Compromise and Release Agreement was secured by fraud and duress.[106] The Board should rely primarily on the Alaska Supreme Court decision in Olsen Logging v. Lawson.[107] The employer contends that clear and convincing evidence is necessary to set aside a compromise and release agreement. A mistake of fact is not an adequate basis to set aside a compromise and release agreement. In order for the Board to find “fraud,” there must be an intentional misrepresentation by the employer which induces the employee to sign the compromise and release agreement.[108] The employer contends that there was no fraud or duress in this case. Specifically, the employer denies that providing controversion notices to Dr. James influenced his report which was issued June 8, 1999.

After reviewing the employee’s account of his medical treatment in 2004, the employer argued at hearing that the employee had an excessive change of physicians after June 10, 2004. This was based on the employee’s moves from Alaska to Washington to seek medical care and then from Washington to Oklahoma and Texas. Even after the employee arrived in Texas, the insurer continued to pay for his care until he visited Dr. Hayes and he recommended a pain clinic. The employee did not follow through on this recommendation and the employer deemed care rendered after the Hayes determination excessive in terms of changes in physicians. The employer further argued that no further payment for the employee’s medical expenses should be made due to the employee’s failure to follow through on Dr. Hayes’ recommendation that the employee enter into a pain treatment program. The employer also asserted that several of the employee’s providers could not be considered treating physicians, i.e. Dr. White and Dr. Dempsey. Notwithstanding the employer’s controversion of benefits due to excessive change of physicians, the employer did pay for the employee’s MRI performed by Sherman Radiology Associates in Oklahoma. They also paid for a bill he incurred with Radiology Associates in Tarrant County, Texas.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. SHALL THE BOARD SET ASIDE THE MARCH 7, 2001 COMPROMISE AND RELEASE AGREEMENT?

A. Applicable Laws

AS 23.30.012 provides for Board review of settlement agreements:

At any time after death, or after 30 days subsequent to the date of injury, the employer and the employee . . . have the right to reach an agreement in regard to a claim for injury . . . under this chapter . . . but a memorandum of the agreement in a form prescribed by the board shall be filed with the board. Otherwise, the agreement is void for any purpose. If approved by the board, the agreement is enforceable the same as an order or award of the board and discharges the liability of the employer for the compensation notwithstanding the provisions of AS 23.30.130, 23.30.160, and 23.30.245. The agreement shall be approved by the board only when the terms conform to the provisions of this chapter and, if it involves or is likely to involve permanent disability, the board may require an impartial medical examination and a hearing in order to determine whether or not to approve the agreement. The board may approve lump-sum settlements when it appears to be in the best interest of the employee.

In Olsen Logging Co. v. Lawson,[109] the Alaska Supreme Court addressed the question of whether the Board could set aside an approved compromise and release agreement. A Board panel had set aside an approved compromise and release agreement based on its finding that the employee lacked judgment and foresight due to a brain injury. It also found the employee was disadvantaged by financial distress, was represented by an out-of-state attorney who might not be expert in Alaska Workers' Compensation law and the amount of the lump-sum settlement was insignificant compared to the potential liability. Finally, the panel concluded that the parties to the claim had also made a mutual mistake of fact.

The Court noted that under AS 23.30.012, approved settlement agreements "have the same legal effect as awards, except that they are more difficult to set aside."[110] The Court held that the provision of AS 23.30.012, exempting approved compromise and release agreements from modification for changed conditions or mistakes of fact under AS 23.30.130, was an expression of legislative intent that approved settlement agreements may not be modified on those grounds. The Court held that the panel had erred in setting aside the approved compromise and release agreement. The Court specifically referred to the panel's reliance on the grounds of unilateral and mutual mistake.

Based on the Olsen decision, the Board has found it does not have authority to set aside an agreed settlement under AS 23.30.130 for a mistake of fact.[111] The Board has followed Olsen on multiple occasions.[112]

B. DO GROUNDS EXIST TO SET ASIDE THE COMPROMISE AND RELEASE IN THIS CASE

The employee alleges that Dr. James was aware of the controversion notices in the employee’s case and that these influenced his medical opinion. The Board has determined "duress" in the context of a compromise and release agreement to be hardship intentionally created by overreaching or improper interference by the employer to coerce the employee to sign.[113] The Board has determined "fraud" in the context of a compromise and release agreement to be intentional misrepresentation, which induces the employee to sign the compromise and release agreement in reliance on that misrepresentation.[114] The Board has also determined the "clear and convincing" standard of proof is required to overturn a compromise and release agreement for duress or fraud.[115]

In this case, the Board finds there is no credible evidence that Dr. James was influenced in his June 8, 1999 opinion by the existence of any controversions from the insurer. The Board is not persuaded by the employee’s argument that fraud and duress occurred and was evidenced by Dr. James’ late report filing. The Board finds there is no evidence of fraud or duress under these circumstances.

Next, the employee alleges that there was fraud and duress in the calculation of his compensation rate in the March 7, 2001 compromise and release agreement. The Board has examined the employee’s allegations and the record in this case and finds there is no evidence that the employee’s compensation rate was calculated incorrectly.

The employee affirmed under oath that he signed the compromise and release agreement "freely and voluntarily."[116] He also stated that he relied on his own judgment in signing the compromise and release agreement, and not on any representations made by the employer or its agents.[117] The employee had the opportunity to review the agreement with his then counsel of record, Mr. Rehbock, who also approved and signed the agreement.[118] On the final page of the compromise and release agreement, the employee affirmed under oath that he read this agreement carefully, understood its contents, and believed the facts described in the agreement are true.[119] The Board finds there is no evidence of fraud or duress associated with the calculation of the employee’s compensation rate.

The employee alleges there was fraud on the part of Mr. Rehbock and that his attorney inadequately represented him. The Board finds the record is devoid of any evidence to support these allegations. In Blanas v. The Brower Co.,[120] the Court found the Board has the implied authority to set aside a compromise and release agreement when it has been secured by either the employee's or employer's fraud, fraudulent misrepresentation, or fraud upon the court. The Board has found authority to set aside an agreed settlement for fraud or duress in past cases.[121] A party's claim of fraud can be considered as a basis for overturning a compromise and release agreement only if the fraud or fraudulent misrepresentation was committed by the opposing party.[122] Therefore, the Board can consider a claim made by the employee only if he is asserting that the signature or approval of the compromise and release agreement was obtained under duress or fraud by the employer.[123]

Applying these precedents to the case at hand, the Board finds that there is no evidence that Mr. Rehbock inadequately represented the employee. The Board finds that the employee was aware of the contents of the compromise and release agreement. The Board finds he signed the agreement with knowledge of its contents. In any event, the Board finds that whatever problems the employee may have had with his counsel, they are not attributable to the employer or the insurer.

The Board finds there is here is no credible evidence of any misrepresentation or fraud on the part of Mr. Rehbock. The employee specifically acknowledged that at the time of settlement, the full extent and duration of his injuries might not be fully known, but that he nonetheless had decided to resolve the matter through the settlement agreement, and waived the right to set the settlement agreement aside in the future.[124] The alleged errors by Attorney Rehbock may have constituted mistakes of fact. However, since there is no evidence of fraud, and the Board does not have authority to set aside an agreed settlement under AS 23.30.130 for mistakes of fact,[125] the employee's claim must be denied and dismissed.

Concerning the employee's assertion of “inadequate representation” the Board will generally not attempt to examine or interfere with the attorney-client relationship. In Forest v. Safeway Stores,[126] the Alaska Supreme Court recognized the possible harsh and inequitable consequences to an employee if his attorney makes mistakes in the prosecution of his workers' compensation claim. Nevertheless, in that case, the Court dismissed the portion of the employee's claim being discussed.[127] The Board cannot set aside a compromise and release agreement based on the lack of communication or lack of understanding between the employee and his former attorney.[128] Based upon the guidance of the Alaska Supreme Court, the Board shall not examine the employee’s relationship with his attorney as a basis to set aside the compromise and release agreement.

In the instant case, there is no credible evidence of any fraud or misrepresentation made by the employer or any of the employer's agents. The employee offered no specific evidence of misrepresentation or fraud by the employer to coerce the employee to sign the compromise and release agreement. Based on the Board’s review of the case record, we find no evidence of misrepresentation or fraud by the employer in the settlement process. The Board finds the employee has failed to prove by a preponderance of the evidence, much less by clear and convincing evidence, that the employer engaged in fraud or misrepresentation to coerce the employee into signing the compromise and release agreement. The Board concludes the compromise and release agreement, approved on March 7, 2001, cannot be set aside.

The employee claims that controversions which existed prior to execution of the March 7, 2001 compromise and release agreement were frivolous and therefore should be considered a basis for setting aside the compromise and release agreement. The Board has examined the controversions and it appears that there were factually based either in reliance on medical opinions extant at the time they were made or based on lack of medical evidence to show compensability of the employee’s claims. Even if they were problematic, they would not amount to evidence of fraud sufficient to set aside the compromise and release agreement.

Finally, the employee maintains that his alleged brain damage precluded him from understanding the compromise and release agreement. The Board has held in other cases that even if an employee has not been able to understand the compromise and release agreement, this is insufficient evidence to set aside the settlement.[129] In addition, in the Olson decision referred to above, the Alaska Supreme Court found that the assertion that the injured worker did not appreciate the rights he was waiving because of “chronic organic brain syndrome” was really an argument that there was a mistake of fact which was not sufficient grounds to overturn the compromise and release agreement.[130]

In addressing this argument, the Board finds that there is insufficient evidence of brain damage based on the employee’s May 15, 2005 evaluation by Dr. Downs. Even if the record were to demonstrate sufficient evidence of brain damage, the Board would still not find that this amounted to more than a mistake of fact which, as we have previously pointed out, is not a sufficient basis for setting aside the March 7, 2001 compromise and release agreement.

II. EMPLOYEE REQUEST FOR ADDITIONAL MEDICAL BENEFITS

The injured worker is afforded a presumption that all the benefits he or she seeks are compensable.[131]

AS 23.30.120(a) states, in relevant part, as follows:

In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that

(1) the claim comes within the provisions of this chapter.

The evidence necessary to raise the presumption of compensability varies depending on the type of claim. In claims based on highly technical medical considerations, medical evidence is often necessary in order to make that connection.[132] In less complex cases, lay evidence may be sufficiently probative to establish causation.[133] The employee need only adduce “some” “minimal” relevant evidence[134] establishing a “preliminary link” between the injury claimed and employment[135] or between a work-related injury and the existence of disability.[136]

The application of the presumption involves a three-step analysis.[137] First, the employee must establish a "preliminary link" between the disability and his or her employment. Second, once the preliminary link is established, it is the employer's burden to overcome the presumption by coming forward with substantial evidence that the injury was not work related.[138] Because the presumption shifts only the burden of production to the employer, and not the burden of proof, the Board examines the employer’s evidence in isolation.[139]

There are two possible ways for an employer to overcome the presumption: (1) produce substantial evidence that provides an alternative explanation which, if accepted, would exclude work-related factors as a substantial cause of the disability; or (2) directly eliminate any reasonable possibility that the employment was a factor in the disability.[140] "Substantial evidence" is the amount of relevant evidence a reasonable mind might accept as adequate to support a conclusion.[141] The Board defers questions of credibility and the weight to give the employer's evidence until after it has decided whether the employer has produced a sufficient quantum of evidence to rebut the presumption that the employee's injury entitles him to compensation benefits.[142]

The third step of the presumption analysis provides that, if the employer produces substantial evidence that the injury is not work-related, the presumption drops out, and the employee must prove all elements of his case by a preponderance of the evidence.[143] The party with the burden of proving asserted facts by a preponderance of the evidence, must "induce a belief" in the mind of the trier of fact that the asserted facts are probably true.[144]

The Alaska Supreme Court has held the presumption of compensability under AS 23.30.120(a) also specifically applies to claims for medical benefits.[145] Treatment must be reasonable and necessary to be payable under

AS 23.30.095(a).[146]

AS 23.30.095(a) provides:

(a) The employer shall furnish medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, and apparatus for the period which the nature of the injury or the process of recovery requires, not exceeding two years from and after the date of injury to the employee. However, if the condition requiring the treatment, apparatus, or medicine is a latent one, the two-year period runs from the time the employee has knowledge of the nature of the employee's disability and its relationship to the employment and after disablement. It shall be additionally provided that, if continued treatment or care or both beyond the two-year period is indicated, the injured employee has the right of review by the board. The board may authorize continued treatment or care or both as the process of recovery may require. When medical care is required, the injured employee may designate a licensed physician to provide all medical and related benefits.

In most circumstances, to overcome a presumption once it attaches, the employer must present substantial evidence that the medical benefits claimed are not compensable.[147]

The Board notes that the medical benefits claimed by the employee are not within the two-year time limit of Hibdon. The Board finds that the employee has raised the presumption of compensability through his account of his injury, the February 18, 2000 report of Dr. Allen Smith and the December 30, 2000 report of Dr. Beck.

Based on the report of Dr Shawn Hadley on May 17, 1999, who concluded that the employee’s right elbow condition was not substantially related to his work injury, that he suffered carpal tunnel which was not related to the work injury and that the neck injury amounted to a cervical strain, we find the employer presented substantial evidence to overcome the presumption.

Therefore, the employee must prove his claims by a preponderance of the evidence. The Board finds that the employee has established a compensable claim for his neck condition by virtue of the SIME report of Dr. Spindle which diagnosed a probable C5-C6 disk protrusion and ultimately found he had a 15% PPI rating, that he could not return to the job at the time of injury and that he needed to be retrained. The Board finds that this report is sufficient to establish the employee has a compensable claim for medical benefits.[148] We also believe the July 12, 1999 Allen Smith letter to the Board established that the employee had injuries to his neck and upper right extremity and upper back, that he was not medically stable and that he was in need of further treatment.[149] This report also supports the Board’s conclusion that the employee has established by a preponderance of the evidence that his medical expenses are compensable.

We then turn to the question of the employee’s excessive change of physicians. .The Board has examined the employee’s medical record in 2004 and finds that the employee is not entitled to compensation for medical expenses after June 10, 2004. The Board finds the record in this case does not support the employee’s claim for ongoing medical treatment after June 10, 2004. This is based on the employee’s excessive change of physicians.

8 AAC 45.082 ( c ) provides:

(c) Physicians may be changed as follows:

(1) An employee injured before July 1, 1988, may change treating physicians at any time without board approval by notifying the employer and the board of the change. Notice must be given in writing within 14 days after the change of treating physicians. If, after a hearing, the board finds that the employee's repeated changes were frivolous or unreasonable, the board will, in its discretion, refuse to order payment by the employer.

(2) Except as otherwise provided in this subsection, an employee injured on or after July 1, 1988, designates an attending physician by getting treatment, advice, an opinion, or any type of service from a physician for the injury. If an employee gets service from a physician at a clinic, all the physicians in the same clinic who provide service to the employee are considered the employee's attending physician. An employee does not designate a physician as an attending physician if the employee gets service

(A) at a hospital or an emergency care facility;

(B) from a physician

(i) whose name was given to the employee by the employer and the employee does not designate that physician as the attending physician;

(ii) whom the employer directed the employee to see and the employee does not designate that physician as the attending physician; or

(iii) whose appointment was set, scheduled, or arranged by the employer, and the employee does not designate that physician as the attending physician.

(3) For an employee injured on or after July 1, 1988, an employer's choice of physician is made by having a physician or panel of physicians selected by the employer give an oral or written opinion and advice after examining the employee, the employee's medical records, or an oral or written summary of the employee's medical records. To constitute a panel, for purposes of this

paragraph, the panel must complete its examination, but not necessarily the report, within five days after the first physician sees the employee. If more than five days pass between the time the first and last physicians see the employee, the physicians do not constitute a panel, but rather a change of physicians.

(4) Regardless of an employee's date of injury, the following is not a change of an attending physician:

(A) the employee moves a distance of 50 miles or more from the attending physician and the employee does not get services from the attending physician after moving; the first physician providing services to the employee after the employee moves is a substitution of physicians and not a change of attending physicians;

(B) the attending physician dies, moves the physician's practice 50 miles or more from the employee, or refuses to provide services to the employee; the first physician providing services to the employer thereafter is a substitution of physicians and not a change of attending physicians;

(C) the employer suggests, directs, or schedules an appointment with a physician other than the attending physician, the other physician provides services to the employee, and the employee does not designate in writing that physician as the attending physician;

(D) the employee requests in writing that the employee consent to a change of attending physicians, the employer does not give written consent or denial to the employee within 14 days after receiving the request, and thereafter the employee gets services from another physician.

(d) Medical bills for an employee's treatment are due and payable within 30 days after the date the employer received the medical provider's bill and a completed report on form 07-6102. Unless the employer

As of June 10, 2004, the employer authorized the employee, at the recommendation of Dr. Hayes, to consult with a chronic pain specialist but the employee did not follow through on this recommendation. The employee never took the steps necessary to participate in this treatment. The physicians seen by the employee after June 10, 2004, were not paid for by the employer as the employee had exceeded the number of physicians authorized pursuant to the Board’s regulations. The Board finds based upon the employee’s testimony that in spite of traveling from state to state in search of medical care, that the employee’s changes of physicians were not due to his inability to receive adequate treatment in Alaska or in the lower 48 states. The Board finds that the record does not establish that his care in Alaska was inadequate. Notwithstanding the employee’s excessive and unauthorized changes in physician, the employee did have two of his medical expenses paid for by the employer. These were his expenses for an MRI[150] performed at Sherman Radiology Associates in Oklahoma. The employer also had his bill paid with Radiology Associates in Tarrant County in Texas. We find that the employee is not entitled to have other providers of medical care compensated after June 10, 2004. As the Board concludes the employee has engaged in an excessive change of physicians, the payment for medical bills incurred after June 10, 2004 is denied.

ORDER

1. The employee’s petition to set aside the compromise and release agreement of March 7, 2001 is denied.

2. The employee’s request for additional medical expense compensation beyond what has already been paid by the employer and for the period after June 10, 2004 is denied due to the employee’s excessive change of physicians under 8 AAC 45.082.

Dated at Anchorage, Alaska on October , 2005.

ALASKA WORKERS' COMPENSATION BOARD

Rosemary Foster, Designated Chair

Pat Vollendorf, Member

APPEAL PROCEDURES

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

RECONSIDERATION

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

MODIFICATION

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Final Decision and Order in the matter of ROBERT (MIKE) FERGUSON, employee / applicant; v. CHUGIAK SENIOR CITIZENS, INC., employer and ALASKA INSURANCE GUARANTY ASSOCIATION, insurer / defendants; Case No. 199825153; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, on October 27, 2005.

Gail A. Rucker

-----------------------

[1] April 15, 2005 workers’ compensation claim. October 20, 1998 report of injury.

[2] Id.

[3] October 15, 1998 Moss report.

[4] January 4, 1999 Smith report.

[5] February 12, 1999 Smith report.

[6] February 11, 1999 Smith note.

[7] Magnetic resonance imaging.

[8] February 5, 1999 Cervical and thoracic spine report by Harold Cable, M.D.

[9] Electromagnetic testing.

[10] February 23, 1999 Downs report.

[11] March 2, 1999 Downs report.

[12] February 25, 1999 Pervier report.

[13] February 26, 1999 brain MRI.

[14] February 26, 1999 controversion notice.

[15] March 12, 1999 workers’ compensation claim.

[16] March 23, 1999 Smith report.

[17] March 30, 1999 Smith report.

[18] June 11, 1999 controversion.

[19] April 19, 1999 Worrell letter.

[20] April 12, 1999 controversion.

[21] Id.

[22] April 16, 1999 workers’ compensation claim.

[23] April 16, 1999 Smith letter.

[24] May 17, 1999 Hadley report.

[25] Id., at 4-5.

[26] May 18, 1999 controversion.

[27] June 8, 1999 James report.

[28] July 12, 1999 Allen Smith letter.

[29] July 27, 1999 cervical MRI.

[30] September 22, 1999 Trimble report.

[31] July 14, 1999 workers’ compensation claim. The employee sought TTD, medical costs, transportation costs, penalty, interest, unfair controversion and attorney’s fees and costs. The employee filed another claim June 30, 2000 seeking TTD from June 9, 2000 and continuing, PPI, medical costs and transportation costs, interest, penalty, unfair cointroversion and attorney’s fees and costs.

[32] February 19, and March 16, 2001 compensation reports.

[33] July 17, 1999 petition.

[34] AWCB Decision No. 99-0226.

[35] December 20, 1999 Beck report.

[36] December 22, 1999 bone scan.

[37] December 30, 1999 Beck report.

[38] January 20, 2000 Spindle report at 3 and 8.

[39] February 18, 2000 Smith medical report.

[40] Magnetic resonance imaging.

[41] April 25, 2000 Alaska Native Medical Center report.

[42] April 25, 2000 Timothy Cohen M.D. chart note.

[43] April 27, 2000 exam by Larry Burr, staff radiologist, Alaska Native Medical Center.

[44] June 10, 2000 Spindle report.

[45] August 11, 2000 Spindle letter.

[46] Id. at 2.

[47] June 19, 2000 workers’ compensation claim.

[48] July 2000 Allen Smith M.D. note.

[49] Employer’s medical evaluation authorized by AS 23.30.095(k).

[50] July 27, 2000 controversion.

[51] August 7, 2000 Smith note.

[52] August 18, 2000 petition.

[53] August 21, 2000 Smith note.

[54] November 2, 2000 Williamson-Kirkland report. The diagnosis of the treatment team was early mild degenerative disk disease, C5-6, ulnar sensitivity at the elbow, probable mild tension headaches and tension myalgia and hypochondrical personality style. October 23, 2000 initial evaluation. The employee was discharged from the program on November 17, 2000. He was given a six percent permanent impairment rating. November 17, 2000 pain management program discharge summary.

[55] December 5, 2000 workrs’ compensation claim.

[56] December 28, 2000 controversion.

[57] January 26, 2001 RBA letter.

[58] February 2, 2001 petition.

[59] March 7, 2001 compromise and release agreement at 6.

[60] Id. at 9.

[61] October 22, 2001 Gonzales report.

[62] November 2, 2001 cervical MRI.

[63] March 5, 2002 Adden Smith report.

[64] May 10, 2002 Goldthwaite report at 6.

[65] September 5, 2000 Goldthwaite report.

[66] September 24, 2002 Wilson report.

[67] October 22, 2002 workers’ compensation claim.

[68] November 7, 2002 Savala report.

[69] May 20, 2003 Beck report.

[70] June 4, 2003 Staker report.

[71] Id., at 2.

[72] June 19, 2003 workers’ compensation claim.

[73] August 6, 2003 cervical spine MRI.

[74] September 16, 2003 Joe Harrison, M.D. report.

[75] October 1, 2003 Partial Compromise and Release Agreement.

[76] Id., at 5.

[77] January 16, 2004 Osteopathic Medical Center report.

[78] September 29, 2005 Hearing tape

[79] February 16, 2004 Haider report.

[80] February 24, 2004 workers’ compensation claim.

[81] March 19, 2004 controversion.

[82] March 25, 2004 MRI.

[83] Id., at 2.

[84] March 30, 2004 petition.

[85] April 26, 2004 Chavda report at 4.

[86] April 24, 2004 Chavda report on radiographic studies.

[87] June 10, 2004 Hayes report.

[88] March 9, 2004 Kaner Medical Report (physician signature illegible).

[89] September 29, 2005 hearing tapes.

[90] September 29, 2005 Hearing tape 2.

[91] Id.

[92] September 16, 2004 controversion.

[93] November 26, 2004 report by David S. Dickman, staff physician.

[94] December 3, 2004 controversion.

[95] December 9, 2004 PCMC Family Practice South report.

[96] December 10, 2004 Anthony Decker, D.O. report.

[97] January 19, 2005 cervical spine MRI evaluation.

[98] January 30, 2005 cervical MRI performed at Alaska Native Medical Center by Howard L. Katz, M.D., radiologist.

[99] December 21, 2004 PCC Behavioral Health Encounter record.

[100] April 14, 2005 Coalwell examination for interim assistance from the State of Alaska.

[101] Id., at 3.

[102] April 15, 2005 workers’ compensation claim.

[103] May 31, 2005 controversion.

[104] June 14 and 27, 2005 Coalwell chart notes.

[105] July 25, 2005 Bertrand report.

[106] Michael West v. Snug Harbor Seafoods, AWCB Decision No. 03-0055 (March 10, 2003) and Oliver v. Trident Seafoods Corporation, AWCB Decision No. 02-0091 (May 16, 2002).

[107] 856 P.2d 1155 (Alaska 1993).

[108] September 22, 2005 hearing brief of employer and carrier at 3.

[109] 856 P.2d 1155 (Alaska 1993).

[110] Id. at 1158 (emphasis added).

[111] Id. at 1159. See also Blanas v. The Brower Co., 938 P2d at 1060.

[112] See Williams v. Knik Sweeping, AWCB Decision No. 99-0298 (December 1, 1998); Costlow v. State of Alaska, AWCB Decision No. 94-0025 (February 18, 1994); Davenport v. K & L Distributors, Inc., AWCB Decision No. 93-0332 (December 22, 1993).

[113] Blanas v. The Brower Co., AWCB Decision No. 97-0252 (December 9, 1997).

[114] Id.

[115] Id.; Witt v. Watkins, 579 P.2d at 1068-70.

[116] Id.

[117] Id. at 9.

[118] Id. at 8.

[119] Id. at 9.

[120] 938 P2d at 1061-1063.

[121] Smith v. Commonwealth Electric Co., AWCB Decision No. 94-0141 at 8 (June 16, 1994); Travers v. American Building Maintenance Co., AWCB Decision No. 94-0140 at 7-8 (June 16, 1994). Klemme v. Eagle Hardware & Garden, AWCB Decision No. 96-471 (December 16, 1996).

[122] Blanas v. The Brower Co., 938 P2d at 1061 n. 7 (quoting 3 Arthur Larson, The Law of Workmen's Compensation § 81.51(a), (b), 15-1120 to 1134 (1992)).

[123] See, e.g., Williams v. Knik Sweeping, AWCB Decision No. 98-0298 at 33.

[124] Compromise and Release Agreement at 7.

[125] Olsen at 1159. See also Blanas v. The Brower Co., 938 P2d at 1060.

[126] 830 P.2d 778,782 (Alaska 1992).

[127] Id. See also Hall v. Alaska West Express, AWCB Decision No. 98-0285 (November 17, 1998).

[128] Blanas v. The Brower Co., 938 P2d at 1061 n. 7.

[129] Seybert v. Cominco Alaska Exploration, AWCB Decision No. 02-0099 (May 31, 2002).

[130] Olson at 1158-9.

[131] AS 23.30.120(a); Meek v. Unocal Corp., 914 P.2d 1276, 1279 (Alaska 1996).

[132] Burgess Construction Co. v. Smallwood, 623 P.2d 312, 316 (Alaska 1981).

[133] Veco, Inc. v. Wolfer, 693 P.2d 865, 871 (Alaska 1985).

[134] Cheeks v. Wismer & Becker/G.S. Atkinson, J.V., 742 P.2d 239, 244 (Alaska 1987).

[135] Burgess Construction, 623 P.2d at 316.

[136] Wein Air Alaska v. Kramer, 807 P.2d 471, 473-474 (Alaska 1991).

[137] Louisiana Pacific Corp. v. Koons, 816 P.2d 1379, 1381 (Alaska 1991).

[138] Id. (quoting Burgess Construction, 623 P.2d at 316). See also Miller v. ITT Arctic Services, 577 P.2d 1044,1046 (Alaska 1978).

[139] Veco, 693 P.2d at 869.

[140] Grainger v. Alaska Workers' Comp. Bd., 805 P.2d 976, 977 (Alaska 1991).

[141] Miller, 577 P.2d 1044.

[142] Norcon, Inc. v. Alaska Workers’ Comp. Bd., 880 P.2d 1051 (Alaska 1994).

[143] Koons, 816 P.2d 1381.

[144] Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).

[145] Municipality of Anchorage v. Carter, 818 P.2. 661, 665 (Alaska 1991).

[146] See Weidner & Associates v. Hibdon, 989 P.2d 727, 731 (Alaska 1999).

[147] Koons, 816 P.2d at 1381; DeYonge v. NANA/Marriott, 1 P.3d 90, 96 (Alaska 2000).

[148] January 5, June 10 and August 11, 2000 Spindle reports.

[149] July 12, 1999 Allen Smith letter.

[150] magnetic resonance imaging

-----------------------

[pic]

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download