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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lopez v. Administrator, Public Employee's Retirement System (4/6/01) sp-5383

Lopez v. Administrator, Public Employee's Retirement System (4/6/01) sp-5383

     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.


JOYCE LOPEZ,                  )
                              )    Supreme Court No. S-9294
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-98-8564 CI
             Appellee.        )    [No. 5383 - April 6, 2001]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                 Sigurd E. Murphy, Judge pro tem.

          Appearances:  Michael J. Jensen, Law Offices
of Michael J. Jensen, Anchorage, for Appellant.  Kathleen
Strasbaugh, Assistant Attorney General, Bruce M. Botelho, Attorney
General, Juneau, for Appellee.

          Before:   Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.  

          MATTHEWS, Justice.

          Joyce Lopez appeals the Public Employees' Retirement
Board's denial of her claim for occupational disability benefits.
Lopez argues that the Board's decision was not supported by
substantial evidence, that the Board applied the incorrect legal
standard to its factual findings, that the Board improperly
excluded Lopez's compromise agreement with the State from evidence,
and that the Board improperly failed to take judicial notice of the
past testimony in other cases of one of Lopez's examining
physicians.  Because substantial evidence supported the Board's
conclusion that Lopez's disability was caused by a degenerative hip
condition unrelated to her work, because the Board correctly
considered whether an occupational injury had been a "substantial
factor" in Lopez's disability, and because the Board did not abuse
its discretion in making its evidentiary decisions, we affirm the
Board's decision.
          Joyce Lopez began work as a resident aide at the State's
Harborview Developmental Center in early 1976.  Her job was
strenuous, as many of the center's developmentally disabled
patients needed to be lifted and moved every two hours.  Although
Lopez endured several on-the-job injuries and suffered from chronic
lower back pain, neither her injuries nor her back pain permanently
affected her ability to do her job. 
          On April 9, 1996, however, Lopez injured her lower back
while lifting a Harborview resident; she never returned to work
after that injury.  Lopez applied for occupational disability
benefits in November 1996.  Because Harborview was closing, Lopez
was able to retire under a retirement incentive program while her
application for disability benefits was pending.  Lopez's
application for occupational disability benefits was denied, but
she was approved for non-occupational disability benefits on the
basis of her inability to work as a resident aide and the lack of
alternate employment opportunities with her employer. 
          Lopez appealed the denial of occupational disability
benefits to the Public Employees' Retirement Board.  On appeal,
Lopez testified that since her injury she had suffered from extreme
pain in her back, radiating through her hip, that made it
impossible for her to return to work as a resident aide.  Relying
on the report of one of Lopez's examining physicians, however, the
Board found that Lopez's disabling pain was caused by degenerative
arthritis in her hip, a condition which did not have a substantial
relationship to any job hazard or incident.  The Board thus
rejected Lopez's appeal, finding that Lopez had not established
that a condition or hazard undergone in the course of her
employment was a substantial factor in causing her disability.
          Lopez appealed the Board's decision to the superior
court, which affirmed the Board's decision.  This appeal follows.
          When the superior court acts as an intermediate court of
appeal, we review the agency's decision directly. [Fn. 1]  We
review questions of law involving agency expertise under the
"reasonable basis" test, where we defer to the agency's
interpretation of a law unless it is unreasonable. [Fn. 2] 
Questions of law not involving agency expertise are reviewed under
the "substitution of judgment" standard. [Fn. 3]  
          We review an administrative board's factual findings to
determine whether they are supported by substantial evidence. [Fn.
4]  Substantial evidence is defined as "such relevant evidence as
a reasonable mind might accept as adequate to support [the Board's]
conclusion." [Fn. 5]  We determine only whether such evidence
exists and do not choose between competing inferences or evaluate
the strength of the evidence. [Fn. 6]  In determining whether
evidence is substantial, however, we "must take into account
whatever in the record fairly detracts from its weight." [Fn. 7]
          This court reviews the exclusion of evidence by
administrative boards for abuse of discretion. [Fn. 8]  
     A.   Substantial Evidence Supported the Board's Finding that
Lopez's Disability Was Caused by a Degenerative Hip Condition
Unrelated to Her Work.

          Lopez argues that the Board's conclusion that her
disability was caused by a degenerative hip condition unrelated to
her work was not supported by substantial evidence.  Specifically,
Lopez attacks the Board's reliance on the report of an examining
physician, Dr. Bryan Laycoe, contending that Dr. Laycoe's
conclusions were contradicted by all of the other physicians who
examined Lopez.  The Public Employees' Retirement System (PERS)
argues, however, that the Board was justified in relying on Dr.
Laycoe's report because his conclusions were based on a thorough
examination of Lopez, supported by objective evidence, and
consistent with the conclusions of other doctors who examined
Lopez.  Our review of the record convinces us that the Board did
not err in basing its conclusion upon Dr. Laycoe's report.
          "An employee is eligible for an occupational disability
benefit if employment is terminated because of a total and
apparently permanent occupational disability, as defined in AS
39.35.680 . . . ." [Fn. 9]  Alaska Statute 39.35.680 defines an
"occupational disability" as a
          physical or mental condition that . . .
presumably permanently prevents an employee from satisfactorily
performing the employee's usual duties for an employer . . . ;
however, the proximate cause of the condition must be a bodily
injury sustained, or a hazard undergone, while in the performance
and within the scope of the employee's duties.[ [Fn. 10]]  

The conclusion that a work-related injury or hazard is not the
"proximate cause" of an employee's disability must be supported by
substantial evidence. [Fn. 11]    
          We have held that an administrative agency may not
reasonably base its conclusion solely upon the opinion of a doctor
who did not examine the patient in any depth and disagreed with the
opinions of all of the patient's treating physicians. [Fn. 12]  But
we have also held that it is not unreasonable for an administrative
board to rely upon the testimony of a reviewing physician whose
testimony is consistent both with the opinion of an examining
doctor and with the objective evidence. [Fn. 13]
          In making its findings, the Board relied most heavily on
the report of Dr. Laycoe.  Dr. Laycoe, an orthopedic surgeon,
examined Lopez on January 11, 1997.  He took a personal history,
conducted a physical examination, and reviewed Lopez's previous X-
rays and medical records.  His examination lasted for an hour and
twenty-five minutes. 
          Dr. Laycoe tested Lopez's range of motion in her back,
but the results were not valid because of guarding.  He also
performed a Waddell's compression test and a rotation test, which
were meant to measure whether Lopez "ha[d] . . . an emotion[al]
overlay or psychological factor to treating [her] back pain."
During both tests, Lopez complained of pain in her back, results
which suggested that Lopez "expresse[d] more pain [in her back]
than [was] truly there."  The X-rays of Lopez's back showed
evidence of osteoporosis, but no evidence of any significant
abnormalities or degenerative changes.  Dr. Ken Smith, the Division
of Retirement and Benefits' reviewing physician, later testified
that "osteoporosis doesn't, in itself, give pain, unless it causes
fractures" and that Lopez's X-rays did not show evidence of any
fractures.  On the basis of his examination, Dr. Laycoe concluded
that Lopez had not suffered a permanent back injury.
          The X-ray of Lopez's hip, by contrast, showed clear
evidence of abnormalities associated with degenerative arthritis.
Lopez's MRI was also consistent with arthritic changes in her hip.
In the absence of any objective evidence of a permanent back
injury, Dr. Laycoe concluded that the pain Lopez "felt" in her back
was actually referred from, and caused by, her degenerative hip.
Dr. Laycoe also concluded that Lopez's hip problem, like the
degenerative arthritis in the basal joints of both her thumbs, was
the "natural progression of a degenerative arthritis with genetic
predisposition," rather than the result of a work-related injury.
          Dr. Laycoe's examination of Lopez lasted for an hour and
twenty-five minutes, substantially longer than the twenty minute
interview and brief examination we criticized in Black. [Fn. 14] 
In addition, Dr. Laycoe's conclusions were consistent with the
objective evidence of Lopez's X-rays and MRI.  Although Dr.
Laycoe's conclusions were contradicted by Lopez's reports of
increased back pain, Lopez's complaints of back pain were not
validated by her range of motion test, and her Waddell's
compression test and rotation test suggested that her feelings of
back pain were exaggerated. 
          Additionally, Dr. Laycoe's conclusions were consistent
with the reports of some of the other physicians who examined
Lopez.  After his examination of Lopez, Dr. Michael James, like Dr.
Laycoe, concluded that the X-rays of Lopez's back were within
normal limits, that Lopez's MRI revealed no evidence of a
degenerative back condition, and that some of Lopez's range of
motion tests were invalid.  After discovering an "[i]nflammatory
reaction of [Lopez's] right hip . . . unrelated to her industrial
injury," Dr. James recommended that Lopez be placed on light duty
"based upon her hip more so than her lumbar spine."  Dr. Gerald
Morris also examined Lopez.  He concluded that Lopez's joint
complaints, while not fully explained, were "consistent with
inflammatory disorder," and did not exclude psoriatic arthritis as
a possible cause.  Dr. Smith did not examine Lopez himself, but did
review all of her medical records.  In his testimony before the
Board, Dr. Smith supported Dr. Laycoe's conclusions.
          Although supported by Dr. James, Dr. Morris, and Dr.
Smith, Dr. Laycoe's conclusions were challenged by Dr. Leland
Olkjer, Lopez's chiropractor.  Dr. Olkjer testified that Lopez had
not reported symptoms in, or been treated for, her hip or lower
back prior to April 1996, but had experienced problems in those
areas after that time.  Dr. Olkjer believed that Lopez had suffered
a serious back sprain in April 1996, and that her hip pain was
referred from her back injury.  Dr. Olkjer thus concluded that
Lopez's disability was caused by her April 1996 work injury.
          But Dr. Olkjer's testimony was contradicted by other
facts in the record.  Dr. James reported that Lopez had received
chiropractic treatment for lower back pain for the past twelve
years.  Dr. Olkjer denied that he had provided that care.  However,
when asked whether she had received chiropractic care for lower
back pain over the past twelve years, Lopez herself testified that
she had received such care.  Having heard Dr. Olkjer's testimony,
Dr. Smith did not change his opinion that Lopez's disability was
caused by her arthritic hip rather than by her 1996 injury or a
degenerative back condition.
          Dr. Olkjer was the only medical expert whose opinion
clearly contradicted Dr. Laycoe's.  Dr. Steven Tower's original
one-page report stated that the "probable cause" of Lopez's hip
pain was "lifting residents."  Dr. Coyle felt that Lopez's MRI
possibly represented some local trauma to the hip or a possible
stress fracture.  Dr. Kathleen Todd stated that Lopez's 1996
injuries "were the predominant cause for her right hip and low back
condition," but qualified that statement by noting that she had not
seen or even spoken to Lopez for three months, and that "[her]
evaluation at that time was based quite extensively on what [Lopez]
said that the doctors in Anchorage said, so is really hearsay, and
not [her] own observation."
          Lopez briefly argues that if her disability was in fact
caused by an arthritic hip, the Board erred by failing to rule out
the possibility that her arthritis had been caused by her work.
Unlike the employees in the workers' compensation cases that Lopez
cites in support of her argument, however, Lopez bore the burden of
proving a relationship between her work and her disability. [Fn.
15]  Until her brief before the superior court, Lopez never argued
that her work bore any relationship to her degenerative hip
condition.  The uncontradicted evidence before the Board was that
Lopez's hip condition was not caused by her work.  The Board's
finding that Lopez's hip problems were not caused by her work was
thus supported by substantial evidence. 
          Dr. Laycoe's conclusions were not only the product of a
thorough examination, but were also consistent both with the
objective evidence and with the reports of some of Lopez's other
examining doctors.  Accordingly, his report provided the substan-

tial evidence needed to support the Board's conclusion that Lopez's
disability was caused by a degenerative hip condition unrelated to
her work.
     B.   The Board Applied the Correct Legal Standard in
Considering Whether an Occupational Injury Was a "Substantial
Factor" in Lopez's Disability. 

          Lopez also argues that the Board applied the incorrect
legal standard in denying her claim for occupational disability
benefits.  Highlighting the Board's factual finding that her 1996
injury "was not so significant in and of itself to have been a
substantial factor in her current state of disability," (emphasis
added) Lopez contends that the Board erred as a matter of law
either by requiring her to prove that her 1996 injury was the sole
cause of her disability, or by requiring her to prove that her 1996
injury worsened her underlying condition rather than merely
worsening its symptoms.  PERS contends, however, that the Board
only required Lopez to prove that her work-related injuries were a
"substantial factor" in her disability.  Upon review, we find that
the Board correctly required Lopez to prove only that a work-
related injury or condition was a "substantial factor" in her
          An employee will be eligible for occupational disability
benefits if a work-related injury or hazard is the "proximate
cause" of a disability that prevents her from working. [Fn. 16]  In
State, Public Employees' Retirement Board v. Cacioppo, we held that
"[i]f one or more possible causes of a disability are occupational,
benefits will be awarded where the record establishes that the
occupational injury is a substantial factor in the employee's
disability regardless of whether a nonoccupational injury could
independently have caused disability." [Fn. 17]  In Hester, we
further held that a work-related injury can be a "substantial
factor" in an employee's disability if it aggravates the symptoms
of an underlying health condition, even if it has no effect on the
underlying health condition itself. [Fn. 18] 
          Correctly citing Cacioppo as the controlling legal
authority, the Board found that Lopez's 1996 injury simply masked
the ongoing referral of pain from her degenerating hip, that Lopez
was not suffering from a degenerative back condition, and that the
cause of Lopez's disability was the degenerative arthritis in her
hip, which had no substantial relationship to any job hazard or
incident.  The Board did not, in other words, find that Lopez would
have been disabled either by her arthritic hip or by her back, but
instead found that the sole cause of Lopez's disability was her
arthritic hip.  Accordingly, because not even "one . . . possible
cause[] of [Lopez's] disability was occupational," [Fn. 19] the
Board correctly applied our holding in Cacioppo in finding that
Lopez's occupational injury was not a substantial factor in her
          Although a work-related injury can be a "substantial
factor" in a disability if it aggravates the symptoms of an
underlying health condition, the injury must have a causal
connection to the worsening of those symptoms for the injury to
"aggravate" them. [Fn. 20]  The Board found, however, that the
lasting pain Lopez experienced after her 1996 injury was caused by
her hip problems rather than by the injury, and that the 1996
injury simply served to "mask" -- rather than to aggravate -- the
ongoing referral of pain from Lopez's degenerating hip.  Because
the 1996 injury did not cause the "aggravated symptoms" -- the
lasting and severe pain -- that disabled Lopez, the Board did not
err in finding that the 1996 injury was not a "substantial factor"
in Lopez's disability.
     C.   The Board Did Not Abuse Its Discretion by Excluding the
Compromise and Release Agreement from Evidence.

          Lopez also contends that the Board erred by not admitting
into evidence the compromise and release agreement reached between
Lopez and the State (her former employer).  Lopez argues that
because it was contrary to the State's interests for it to admit
that Lopez's disability was work-related, the agreement was
reliable enough to be considered by the Board.  PERS argues, to the
contrary, that the agreement represented nothing more than a
compromise settlement of a disputed claim, and was thus not the
kind of evidence upon which the Board could have responsibly
relied.  We find that the Board did not abuse its discretion in
excluding the compromise agreement from evidence.
          The rules governing the hearing before the Board state:
               The hearing will not be conducted
according to technical rules relating to evidence and witnesses. 
Relevant evidence, including hearsay evidence, will be admitted if
it is evidence on which responsible persons are accustomed to rely
in the conduct of serious affairs.  Irrelevant and unduly
repetitious evidence will be excluded or curtailed.[ [Fn. 21]]  

Although hearings before the Board are governed by 2 AAC 35.160(c)
rather than by the Alaska Rules of Evidence, both parties appeal to
the rules as persuasive authority. Lopez contends that the
agreement was reliable either as an admission by a party opponent
(Evidence Rule 801(d)(2)), or as a statement against interest
(Evidence Rule 804(b)(3)).  PERS argues, to the contrary, that the
compromise agreement was, by its own terms, an unreliable
compromise agreement (Evidence Rule 408).
          Rules 801(d)(2) and 804(b)(3) both provide exceptions to
the general bar on hearsay.  Rule 801(d)(2) states that hearsay
does not include admissions by a party opponent or a party
opponent's agent.  But we have held that because PERS and the State
(as an employer) are not in privity, the State's actions do not
bind PERS as would the acts of one of PERS's agents. [Fn. 22]     
          Where a declarant is unavailable, Rule 804(b)(3) provides
an exception to the hearsay rule for a
          statement which was at the time of its making
so far contrary to the declarant's pecuniary or proprietary
interest, or so far tended to subject the declarant to civil . . .
liability, . . . that a reasonable person in the declarant's
position would not have made the statement unless believing it to
be true.

Regardless of the statements it makes, however, the State bears
broad potential liability to a disabled worker under workers'
compensation law, where compensability is presumed. [Fn. 23]
          Evidence Rule 408 bars the introduction of "[e]vidence of
. . . offering . . . a valuable consideration in compromising . . .
a [disputed] claim . . . to prove liability for or invalidity of
the claim," and also bars "[e]vidence of conduct or statements made
in compromise negotiations."  Rule 408 is meant both to facilitate
the settlement of disputes, and to bar the introduction of
irrelevant evidence reflecting "a desire for peace rather than
. . . any concession of weakness of position." [Fn. 24]  Rule 408
clearly bars admission of a compromise between the litigant and a
third party against a litigant, as litigants would be less willing
to make compromises with third parties if those compromises could
be used against them in later litigation. [Fn. 25]  Unlike
introduction of a settlement agreement with a third party againsta litigant, however, permitting a litigant to introduce evidence of
his or her own compromise with a third party generally should not
be a deterrent to settlement. [Fn. 26]  But in such a case the
compromise settlement is still ordinarily of little probative
value, reflecting, not the litigant's, but the third party's desire
for peace rather than any concession of a weak position.
          The agreement contains a lengthy recitation of facts
about Lopez's injury, taken from Lopez's medical reports.  To
settle Lopez's controverted workers' compensation claims, the State
agreed to pay her $20,000 in exchange for a release from future
liability.  Lopez argues, and the State implicitly concedes, that
various elements of the agreement represent "admissions" by the
State that Lopez's disability was caused by a work-related injury.
          The facts about Lopez's disability are the most relevant
part of the agreement.  But those facts merely repeat the informa-

tion contained in the medical reports already before the Board. 
Admission of this portion of the agreement would thus be "unduly
repetitious." [Fn. 27]
          What makes the agreement unique is the State's admission
that Lopez's disability was caused by a work-related injury.  But
the reliability of that admission is suspect for three reasons. 
First, the agreement's reliability is not secured by its being an
admission of a party opponent or a party opponent's agent.  The
State, of course, was not a party to this case.  Moreover, the
State is not PERS's agent, and so the admissions of the State
cannot be attributed to PERS. [Fn. 28]  It is not insignificant,
too, that no representative of the State could have testified as an
"author" of the agreement.  Lopez does not rebut PERS's assertion
that the agreement was actually authored by Lopez's counsel.
          Second, the State's admission of liability was not "so
far contrary" to the State's interests as to make the agreement
reliable.  Most obviously, use of this admission against the State
in a subsequent proceeding would be barred by Evidence Rule 408. 
In addition, under workers' compensation law, the State already
faced a presumption that Lopez's injury had been caused by a work-
related incident. [Fn. 29]  In the face of such a presumption,
contesting Lopez's claim was certain to be costly.  At the time of
settlement, then, conceding the work-relatedness of Lopez's
disability for settlement purposes was not "so far contrary to the
[State's] pecuniary . . . interest," and did not "so far tend[] to
subject the [State] to civil . . . liability," [Fn. 30] that
reasonable people would not have made the concession unless they
believed it to be true.
          Third, the State had a substantial financial incentive to
settle Lopez's disputed claims.  Although the claim was
controverted at the time of settlement, the State was still paying
Lopez $361.33 a week in vocational rehabilitation benefits.
Admitting liability relieved the State from this continuing
financial obligation.  Moreover, the costs of the settlement were
relatively low, representing only fourteen weeks of PPI benefits
plus rehabilitation benefits for an additional thirty-seven weeks.
The reliability of such a compromise settlement is similarly low,
for it could easily represent the State's desire to buy peace
rather than an acknowledgment of a weak position. [Fn. 31]  
          Lopez also implicitly argues that this court should
discount Dr. Laycoe's testimony because these decisions reveal his
pro-PERS bias.  PERS argues, in reply, that Dr. Laycoe's credibil-

ity was a matter for the Board's determination rather than this
court's.  Lopez's attempt to reopen the question of Dr. Laycoe's
credibility is unavailing:  "Weighing the evidence is the role of
the board, not this court." [Fn. 32]  
          Because the relevant portions of the agreement were
unduly repetitious, and its unique aspects were unreliable, the
Board did not abuse its discretion in excluding the agreement from
     D.   The Board Did Not Err by Not Taking Judicial Notice of
Alaska Workers' Compensation Board Decisions in Which Dr. Laycoe's
Opinions Were Reported. 

          Lopez argues that the Board should have taken judicial
notice of Dr. Laycoe's previous pro-employer testimony in reported
decisions of the Alaska Workers' Compensation Board.  PERS argues,
in reply, that Lopez failed to present this evidence to the Board,
and that the Board thus did not err in failing to take judicial
notice of it.
          The rules applicable to the proceeding before the Board
do not discuss the issue of judicial notice; instead, they provide
generally for the admission of relevant, reliable, and non-
repetitious evidence. [Fn. 33]  Under the Rules of Evidence, a
judicially noticed fact must be one not subject to reasonable
dispute in that it is either (1) generally known within Alaska or
(2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned. [Fn. 34] 
A court may take notice of such facts whether or not it is
requested to do so. [Fn. 35]  A court must take notice of such
facts "if the requesting party furnishes sufficient information and
has given each party notice adequate to enable the party to meet
the request." [Fn. 36]
          Lopez first requested judicial notice of Dr. Laycoe's
prior testimony in her brief to the superior court.  As Lopez made
no request for judicial notice to the Board, the Rules of Evidence
would not have required the Board to take such notice. [Fn. 37] 
The Board thus did not abuse its discretion by failing to take
judicial notice of Dr. Laycoe's past testimony.
          Because the Board applied the correct legal standard in
concluding that Lopez was disabled by a degenerative hip condition
unrelated to her work -- a conclusion supported by substantial
evidence -- and did not abuse its discretion in its evidentiary
rulings, we AFFIRM the Board's decision.


Footnote 1:

     See Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).

Footnote 2:

     See id.; State, Dep't of Revenue v. Atlantic Richfield Co.,
858 P.2d 307, 308 (Alaska 1993).

Footnote 3:

     See Handley, 838 P.2d at 1233.

Footnote 4:

     See Hester v. State, Public Emp. Retirement Bd., 817 P.2d 472,
476 (Alaska 1991).

Footnote 5:

     Id. (internal quotation omitted, brackets in original). 

Footnote 6:

     See Handley, 838 P.2d at 1233.

Footnote 7:

     Hester, 817 P.2d at 477 n.8 (Rabinowitz, C.J., dissenting).

Footnote 8:

     See DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000). 
See also Bonneville Auto. Ins. Co. v. Insurance Div., Dep't of
Commerce, 632 P.2d 796, 802 (Or. App. 1981).

Footnote 9:

     AS 39.35.410(a). 

Footnote 10:

     AS 39.35.680(26).

Footnote 11:

     See Hester, 817 P.2d at 476.

Footnote 12:

     See Black v. Universal Services, Inc., 627 P.2d 1073, 1075-76
(Alaska 1981).

Footnote 13:

     See Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189-
90 (Alaska 1993).

Footnote 14:

     627 P.2d at 1076 n.9.

Footnote 15:

     See State, Pub. Emp. Retirement Bd. v. Cacioppo, 813 P.2d 679,
682-83 (Alaska 1991).  

Footnote 16:

     See AS 39.35.410(a); AS 39.35.680(26).

Footnote 17:

     813 P.2d at 683 (emphasis added).

Footnote 18:

     817 P.2d at 475.

Footnote 19:

     Cacioppo, 813 P.2d at 683.

Footnote 20:

     See Hester, 817 P.2d at 475.

Footnote 21:

     2 AAC 35.160(c).

Footnote 22:

     See Holmberg v. State, Div. of Risk Management, 796 P.2d 823,
827-29 (Alaska 1990) (finding no privity, and therefore no
collateral estoppel effect to PERS decisions in workers'
compensation proceedings, because "[t]he PERS constituency is not
represented at all in a workers' compensation proceeding").

Footnote 23:

     See Hester, 817 P.2d at 476.

Footnote 24:

     Commentary to Evidence Rule 408.

Footnote 25:

     See McInnis v. A.M.F., Inc., 765 F.2d 240, 247 (1st Cir.

Footnote 26:

     See Bulaich v. AT & T Information Systems, 778 P.2d 1031, 1036
(Wash. 1989); 23 Charles A. Wright & Kenneth W. Graham, Jr.,
Federal Practice & Procedure: Evidence sec. 5303, at 194 (1980). 
see Pierce v. F.R. Tripler & Co., 955 F.2d 820, 828 (2d Cir. 1992)
(barring admission of settlement agreement even when offered by
settlor, noting that testimony as to terms of settlement agreement
by lawyers involved would prevent those lawyers' representation of
the parties at trial).

Footnote 27:

     See 2 AAC 35.160(c).

Footnote 28:

     See Holmberg, 796 P.2d at 827-29.

Footnote 29:

     See Hester, 817 P.2d at 476.

Footnote 30:

     Alaska R. Evid. 804(b)(3).

Footnote 31:

     See Commentary to Evidence Rule 408.  

Footnote 32:

     Hester, 817 P.2d at 477 (rebutting appellant's contention that
the administrative board "gave inordinate weight to the testimony
of [a doctor], considering his bias as a member of the DRB, his
lack of personal medical knowledge of [appellant] and his lack of
special expertise relating to [appellant's disorder].").

Footnote 33:

     See 2 AAC 35.160(c).

Footnote 34:

     See Alaska R. Evid. 201(b).

Footnote 35:

     See Alaska R. Evid. 201(c).

Footnote 36:

     Alaska R. Evid. 201(d).

Footnote 37:

     See id.