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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dougan v. Aurora Electric, Inc. (6/28/2002) sp-5591

Dougan v. Aurora Electric, Inc. (6/28/2002) sp-5591

     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.


            THE SUPREME COURT OF THE STATE OF ALASKA


RANDY S. DOUGAN,                        )
                              )    Supreme Court Nos. S-9937/9958
     Appellant/Cross-Appellee,          )
                              )    Superior Court No. 3AN-00-3626
CI
     v.                       )
                              )    O P I N I O N
AURORA ELECTRIC INC., EAGLE   )
PACIFIC INSURANCE, ALASKA          )     [No.  5591  -  June  28,
                                   2002]
WORKERS COMPENSATION          )
BOARD,                                            )
                              )
     Appellees/Cross-Appellants.   )
________________________________)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Eric T. Sanders, Judge.

          Appearances:   Randy Dougan,  pro  se,  Eagle
          River.   Joseph  M. Cooper, Russell,  Tesche,
          Wagg,   Cooper   &  Gabbert,  Anchorage   for
          Appellees/Cross-Appellants.

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

          CARPENETI, Justice.

I.   INTRODUCTION

          I.   Randy S. Dougan sustained work-related injuries during

his   employment  with  Aurora  Electric.   The  Alaska   Workers

Compensation  Board  heard  and  resolved  his  claims.    Dougan

appealed  the boards decision to the superior court.  Dougan  now

appeals the superior courts decisions that he was not entitled to

penalties  and  interest on his award and that  thirteen  of  his

fifteen  claims  should be dismissed.  Aurora  cross-appeals  the

decision  by  the  superior court that the board  wrongly  denied

Dougan a compensation rate adjustment.

          We  affirm the denial of penalties and interest because

substantial evidence supports that decision.  We affirm dismissal

of  eleven  of  the claims because, although the court  erred  in

dismissing them for inadequate briefing without giving the pro se

litigant  an opportunity to correct the briefing, the  error  was

harmless  in  the circumstances of this case.  We remand  to  the

board  the  remaining two claims dismissed by the superior  court

for  factual  determinations.  Finally, we reverse  the  decision

remanding  the  compensation rate adjustment  to  the  board  for

recomputation because the boards computation was proper under  AS

23.30.220 as it has been amended.

II.  FACTS AND PROCEEDINGS

          A.   Facts

          Randy  Dougan sustained an injury to his lower back  on

November  1,  1996  while  working as an electrician  for  Aurora

Electric.1  Dougan saw Dr. Edward M. Voke for this back injury  a

few   days  later.   The  doctor  diagnosed  Dougan  with   acute

lumbosacral  facet syndrome, an inflamation of the  articulations

between the vertebrae.  Dougan was placed on temporary disability

beginning  on  November 5, 1996, throughout  which  time  he  was

periodically  paid  either temporary total  disability  (TTD)  or

temporary   partial  disability  (TPD).   Dougans  gross   weekly

earnings  were  calculated  under AS  23.30.220(4)(A)  using  the

thirteen weeks between July 27, 1996 and November 2, 1996.

          Dr.  Voke  referred  Dougan to  Dr.  Michael  James  on

December  9,  1996  for a condition that Dr.  Voke  diagnosed  as

chronic low back pain.  Dougan continued to be unable to work and

received  either TTD or TPD until January 8, 1997 when Dr.  James

stated  that  Dougan  could  return  to  light  work,  which  was

available  to him.  Benefits were suspended on January  9,  1997.

However,  on February 19, 1997, Dr. James reported that no  light

work  had been available, resulting in Dougan not working  during

the previous month.  That same day, Dr. James released Dougan  to

          work as an electrician without limitation from that day forward.

Although Dougans benefits were suspended on January 9, 1997  when

he  was  released to light duty, his inability to find such  work

resulted  in  the reinstatement of his benefits from January  31,

1997 to February 19, 1997.  With Dr. Jamess release to full duty,

though,  Dougans  benefits were suspended starting  February  20,

1997.   Dougan eventually received benefits for January  9,  1997

through January 31, 1997 with penalties, due to Auroras delay  in

payment.

              Dr.  James  determined that  Dougan  was  medically

stable  and  could  return  to medium work  on  April  21,  1997.

Because of Dr. Jamess finding of medical stability, benefits were

reinstated for the time between the last suspension, February 20,

1997,  to  Dougans date of stability, April 20,  1997.   Benefits

were  then suspended on April 21, 1997.  Eventually, Aurora  paid

benefits for the time between Dougans first release to full  duty

and Dr. Jamess finding of medical stability, February 20, 1997 to

April  20,  1997, with penalties.  On April 29, 1997,  Dr.  James

reported  that  Dougan had a Permanent Partial  Impairment  (PPI)

rating of five percent and Aurora paid Dougan a lump sum pursuant

to the PPI rating on May 13, 1997.

          On  June 20, 1997 Dr. Lee B. Silver examined Dougan for

an  Employer  Medical Evaluation (EME) and concluded that  Dougan

was  medically stable and could return to work as an  electrician

with no restrictions.  Dr. Silver also concluded that Dougan  had

a  PPI  of  zero percent and that he required no further  medical

treatment.  On July 11, 1997 Aurora controverted all benefits due

on  the basis of Dr. Jamess April 29, 1997 report and Dr. Silvers

June 24, 1997 report.  Aurora eventually paid Dougan all benefits

due to him.

          In May 1997 Dougan stopped treatment with Dr. James and

started  treatment with Dr. Samuel H. Schurig.  On June 13,  1997

Dr. Schurig stated that Dougan was medically stable; however,  on

June 24 he found that Dougan was not medically stable but that he

could  return to light work as it became available.  On September

29,  1997,  Dr.  Schurig stated that Dougan was  still  medically

unstable but was continuing to show improvement.

          A  second  independent  medical evaluation  (SIME)  was

performed by Dr. Douglas G. Smith on January 23, 1998.  Dr. Smith

stated that, due to Dougans objective improvement while under Dr.

Schurigs  care, a medical stability date of November 1, 1997  was

justified.  Aurora subsequently paid TTD benefits for  April  21,

1997  through  May 15, 1997 with interest and penalties  and  TTD

benefits for May 16, 1997 through November 4, 1997 with interest.

Aurora  also  paid all medical bills for treatment prior  to  the

SIME  report.   Some of Dr. Schurigs bills were returned  to  his

office  because  they  were  lacking information.   Dr.  Schurigs

office  resubmitted the bills with the requested  information  on

June 11, 1998 and the bills were paid on June 23, 1998.

     B.   Proceedings

          A.   Dougan filed a petition with the Alaska Workers Compensation

Board  in  April  1997 making several allegations  of  misconduct

against  Aurora  and its insurer in the handling  of  his  claim.

Dougan also requested a PPI rating by Dr. Schurig, a compensation

rate  adjustment,  and penalties and interest  on  TTD,  PPI  and

medical  benefits.  In September 1997 Dougan filed an Application

for  Adjustment of Claim, requesting TTD benefits from April  21,

1997   on,   with   penalties,  interest,  medical   costs,   and

transportation  costs.  Dougan alleged that Aurora  unfairly  and

frivolously  controverted  his  claims.   In  addition  to  these

petitions, Dougan filed several petitions alleging misconduct  by

Aurora,  violations of the Alaska Workers Compensation  Act,  and

civil and criminal causes of action.

          In  May  1999 the board determined after oral  argument

that   it  did  not  have  authority  to  adjudicate  the  civil,

constitutional, or criminal claims.  The board concluded that, in

criminal matters, its authority was limited to referring  matters

to  the  proper authorities if a violation became apparent during

the  course  of the proceedings.  A second hearing  was  held  on

October   21,   1999   to   determine  the  substantive   workers

compensation  issues  of  Dougans  claims.   On  the  substantive

issues,  the  board ruled that:  (1) Dougan was not  entitled  to

penalties for late-paid time-loss compensation, medical  benefits

and  PPI  benefits; (2) Dougan was not entitled to  interest  for

late-paid  time-loss  compensation,  medical  benefits  and   PPI

benefits;  (3) Aurora did not unfairly or frivolously  controvert

Dougans  claims;  (4) Dougan was not entitled to  a  compensation

rate  adjustment; (5) Dougan was not entitled to a PPI rating  by

Dr.  Schurig   the board dismissed this issue without  prejudice;

(6)   Dougans  request  that  the  board  refer  allegations   of

misconduct to other agencies and authorities was  denied.

          Dougan appealed the boards order to the superior court,

raising  fifteen  issues.  The superior court  held  that  Dougan

abandoned  thirteen of the issues because these issues  were  not

adequately  briefed or were not listed in the points  on  appeal.

The  two  remaining issues were whether the board properly  found

that  Dougan was not entitled to penalties and interest on  late-

paid  benefits  and whether the board properly  denied  Dougan  a

compensation rate adjustment.  The superior court held  that  the

board  properly  denied interest and penalties  to  Dougan.   The

issue  of  whether  a compensation rate adjustment  was  due  was

remanded  for  a  determination under Gilmore v.  Alaska  Workers

Compensation Board2 of whether Dougans past employment history is

an accurate predictor of losses due to injury.

          Dougan  appealed  the superior courts  ruling.   Aurora

filed  a cross-appeal claiming that the superior court improperly

ruled  that the board erred in finding that no compensation  rate

adjustment was due.

III. STANDARD OF REVIEW

          When  the superior court acts as an intermediate  court

of  appeal  in an administrative matter, we independently  review

and  directly scrutinize the merits of the boards decision.3   We

          review procedural decisions of the superior court under an abuse

of  discretion standard.4  We will reverse a ruling for abuse  of

discretion only when,  after reviewing the whole record,  we  are

left  with a definite and firm conviction that the superior court

erred.5

          Factual  findings made by the board are reviewed  under

the  substantial  evidence standard.6  Factual findings  will  be

upheld  so  long  as  there  is   such  relevant  evidence  as  a

reasonable mind might accept as adequate to support a conclusion. 7

Discovery rulings are generally reviewed for abuse of discretion.8

          In questions of law involving the agencys expertise,  a

rational basis standard will be applied and we will defer to  the

agencys  determination  as long as it is  reasonable.9   We  will

substitute  our  own judgment for questions of law  that  do  not

involve   agency  expertise.10   Constitutional   questions   are

questions of law for which we will substitute our own judgment.11

We will adopt the rule of law that is most persuasive in light of

precedent, reason, and policy.12

IV.  DISCUSSION

          There  is  a  threshold issue:  whether this  claim  is

properly  before  this court.  The superior court   remanded  the

issue  of  whether  Dougan was entitled to  a  compensation  rate

adjustment to the board.  We have held that when a superior court

acts  as an intermediate appellate court and reverses and remands

an  agency  ruling, the superior courts decision is not  a  final

judgment.13  Under the appellate rules, an appeal as a matter  of

right  may not be maintained when no final order has been  issued

by the superior court.14  However, we have the discretion to treat

this  as a petition for review pursuant to Appellate Rule  402.15

We  may  review a non-final judgment when postponement of  review

will result in undue delay.16  Because we find that both the board

and  the  superior court applied a test that is  superfluous  and

that  remanding the issue back to the board will result in  undue

delay,  we  treat this appeal as a petition for review and  grant

          the petition so as to reach the merits.

     A.   The  Superior  Court Did Not Err in  Finding  that  the

          Board Properly Denied Penalties and Interest.

          Dougan  claims  that  the board erred  in  denying  him

penalties  and interest on compensation payments controverted  by

Aurora.  An employee is entitled to interest on compensation that

is not paid when due.17  An employee is also entitled to penalties

on  compensation due if compensation is not properly controverted

by  the  employer.18   We have held that an  employer  must  have

evidence  that  would justify denial of a compensation  award  in

order  to make a good faith controversion.19  Specifically, there

must be reliance by the insurer on responsible medical opinion or

conflicting medical testimony.20

          The  board found that Aurora properly controverted  all

benefits  on July 11, 1997 on the basis of Dr. Jamess report  and

Dr.  Silvers report.  The board also found that Aurora eventually

agreed to the payment of compensation for the period of April 21,

1997  through  November 4, 1997, but properly  postponed  payment

until   Dougans  employment  activities  for  that  period   were

confirmed.   The  board found that penalties  and  interest  were

properly  paid  and  that neither further penalties  nor  further

interest  was due.  The board found that Dr. Schurigs bills  were

paid  within  the  requisite time after  re-submission  with  the

requested  information.   The superior court  upheld  the  boards

findings using the substantial evidence standard.

          Dougan  also  claims  that the board  failed  to  award

penalties  under  AS  23.30.250.  The board  found  that  it  was

without  jurisdiction  to award penalties  under  this   statute.

Alaska  Statute 23.30.250 provides that one who makes a false  or

misleading  statement  is civilly liable to  a  person  adversely

affected  by  the conduct.21  The civilly liable  portion  of  AS

23.30.250(a)  is  in  reality  not  a  penalty  provision  but  a

legislative declaration that one who engages in certain  specific

conduct  will  be liable in a civil action to a person  adversely

          affected by the conduct.  Alaska Statute 23.30.250(a) implies

that  the  civil  action should be brought in court  rather  than

before  the  board  both by the term civilly liable  and  by  the

conjunction of that term with the other provisions of  subsection

.250(a) which refer to criminal penalties which obviously must be

adjudicated in court.  This conclusion is bolstered by  the  fact

that AS 23.30.250(b) expressly relates to remedies that the board

can  impose  upon a finding that a claimant has made a  false  or

misleading statement.  Therefore the board did not err in denying

Dougan a remedy for civil penalties under AS 23.30.250(a).

          All  interest payments due were paid by Aurora.  Dougan

offers no time period for which he claims he is specifically owed

interest on compensation payments.  According to the facts  found

by the board and stated above, compensation has been paid for the

entire  period that Dougan was injured, November 1, 1996  through

November  4,  1997.  Payments that were late due to controversion

by  Aurora for the periods of January 9, 1997 through January 30,

1997  and April 21, 1997 through November 4, 1997  have been paid

with  interest.  Therefore, Dougan received the interest payments

to which he was entitled.

          The  board had substantial evidence to find that Aurora

controverted the claims in good faith and that Dougan is not owed

penalties or interest.22  Therefore, we uphold the decision of the

superior  court finding that the board properly denied  penalties

and interest.

     B.   The  Superior  Court  Erred in Dismissing  Thirteen  of

          Dougans Fifteen Claims.

          Dougan   claims  that  the  superior  court  improperly

dismissed  thirteen of his fifteen claims because his  brief  did

not  comply  with  the  appellate  rules.   The  superior  courts

decision  offers very little explanation of the reasons  for  the

dismissal.   Only one concrete example of the briefing inadequacy

was  given for all thirteen claims.  There is no indication  that

Dougan  was given notice of the inadequacy and a chance to comply

          with the briefing requirements.

          Under  the  appellate rules, the superior  court  could

have  given Dougan a chance to correct the brief.23  We have held

that the briefs of a pro se litigant are held to a less stringent

standard than those of attorneys.24  A judge must inform a pro se

litigant  of  the proper procedure for the action he  or  she  is

obviously attempting to accomplish.25  Specifically, a judge must

notify a pro se litigant of defects in his or her brief and  give

the party an opportunity to remedy those defects.26  Here, before

dismissing  the claims, the superior court should  have  notified

Dougan of the defects in his brief and given him leave to correct

those  defects.  Since Dougan made a good faith effort to  comply

with briefing requirements, we find that the superior court erred

in dismissing thirteen of his fifteen claims.

          We  have reviewed de novo the thirteen claims that were

dismissed.  We find that, no matter how restated, eleven of these

claims  are meritless and we dismiss them as having no  basis  in

the  law.   These  eleven  claims include alleged  violations  of

Dougans  right  to privacy27 and equal protection  rights,28  the

boards  refusal to refer various violations to other  agencies,29

Dougans third-party immunity claim,30 Dougans claim regarding the

exclusive remedy provision of the Act,31 the boards finding  that

it  was  without  jurisdiction to rule on Dougans  discrimination

claim,32  and denial of Dougans claims that the board  failed  to

issue  its opinion within thirty days,33 that his claim was heard

by more than one panel,34 and that Dougan was entitled to a second

permanent partial impairment rating.35  However, we find that two

of  his fifteen claims may proceed and we remand these claims  to

the board to make the appropriate findings.

            First, Dougans claim that his due process rights were
violated  by the boards failure to rule on his discovery requests
requires  hearing by the board.  We have held  that  a  fair  and
meaningful hearing, as required by due process, does require that
the parties be given adequate access to information requested  in
discovery.36   The  record  indicates  that  Dougan  filed  three
discovery requests: one on December 3, 1998, a second on December
17,  1998, and the last on February 17, 1999.  In addition to his
discovery  requests, Dougan also demanded that the  board  compel
          discovery in petitions filed on December 17, 1998 and April 5,
1999, as well as in an objection filed on February 18, 1999.   At
the pre-hearing conference on March 5, 1999, the discovery issues
were  discussed  and  the parties agreed to defer  the  questions
regarding  discovery  until  the  issues  concerning  the  boards
jurisdiction  to hear Dougans criminal and civil  claims  against
Aurora  were decided.  In the boards order ruling that the  board
did  not have jurisdiction to hear the criminal and civil claims,
the  board  stated that discovery would not be compelled  because
evidence  related to these issues is not relevant to  a  material
issue  at  [the]  hearing.  In his petition for  reconsideration,
Dougan  again asked the board to reconsider his discovery request
because  the  referenced  petition  to  compel  discovery   dated
12/17/98  does  include  other  relevant  issues.   Also,  in  an
objection filed on June 7, 1999, Dougan stated that his discovery
request  filed  on February 17, 1999 was still  disputed  by  the
parties  and  had  not been resolved by the board.   We  find  no
indication that the board ever addressed Dougans requests.

          Second, Dougan alleges that the board failed to include
the  value  of  his  employer-provided  health  benefits  in  his
compensation  rate.  Dougan claims that he was entitled  to  this
adjustment under 8 AAC 45.220, which includes health benefits  as
periodic  payments that are taken into account in determining  an
employees compensation rate.37  In fact, the board has held  that
the  statute does not leave any discretion when calculating gross
earnings  and  that health and life insurance  benefits  must  be
included as a periodic payment. 38   Dougan raised this issue  to
the  board  in  an  amendment to a petition  and  the  issue  was
discussed  in  a  pre-hearing  conference  on  March  18,   1999.
Therefore,  we  remand  this  issue  back  to  the  board  for  a
determination  of  whether Dougan is entitled to  a  compensation
rate  adjustment  based  on the amount of  his  employer-provided
health benefits.

          C.   The Superior Court Erred in Remanding the Issue of
          a Compensation Rate Adjustment to the Board.
          
          Aurora   argues  on  cross-appeal  that,   because   AS
23.30.220(a)39 has been amended, the case law that both the board
and  the  superior  court applied is no  longer  applicable.   In
Gilmore  v.  Alaska Workers Compensation Board,40 we  found  that
application   of   a   prior  version  of  AS   23.30.22041   was
unconstitutional under the Equal Protection Clause.42  The holding
in  Gilmore is largely based on the fact that wage determinations
under  the prior version of the statute based compensation  rates
exclusively on the average wage earned during a period of over  a
year  without providing an alternate approach if the  result  was
unfair.43   The  amended  version of AS 23.30.220  corrects  that
problem   by  providing  a  variety  of  formulas  for  differing
employment  situations.   The board  correctly  applied  the  new
version  of AS 23.30.220(a) when it initially calculated  Dougans
compensation rate.  The amended statute closely follows the model
law  cited  in Gilmore as an example of a statute that would  not
violate  the Equal Protection Clause.44  The application  of  the
test outlined by this court to deal with an unfair application of
the  statute is superfluous due to these amendments.   Therefore,
we  reverse  the superior courts remand of the compensation  rate
adjustment and hold that the Gilmore test is no longer  necessary
when the boards initial determination of compensation is based on
the amended version of AS 23.20.220.

V.   CONCLUSION
     
          Because  substantial  evidence supported  the  superior
courts  decision  to deny penalties and interest, we  AFFIRM  the
denial  of  penalties and interest.  Because the  superior  court
dismissed Dougans claims without providing him an opportunity  to
provide adequate briefing, we hold that the superior court  erred
in dismissing those claims.  But reviewing the thirteen claims de
novo,  we  hold that eleven of the claims are without  merit  and
therefore  AFFIRM  the  superior  courts  dismissal  of  them  as
harmless error. As to the remaining two claims (alleged violation
of Dougans due process rights by failing to rule on his discovery
requests  and  alleged error in the compensation rate  adjustment
based  on  employer-provided health  benefits),  we  REVERSE  the
superior courts dismissal and REMAND the claims to the board  for
factual determinations.  Finally, we REVERSE the superior  courts
decision applying the Gilmore standard to the amended version  of
AS  23.30.220, because the Gilmore standard is not applicable  to
the  revised  statute;  we  reinstate  the  boards  denial  of  a
compensation rate adjustment.





_______________________________
     1     The  employer, Aurora Electric Inc., and its  insurer,
Eagle  Pacific Insurance Group, will collectively be referred  to
as Aurora in this opinion.

     2    882 P.2d 922 (Alaska 1994).

     3     DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000);
Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896,
903 (Alaska 1987).

     4    Morgan v. State, Dept of Revenue, 813 P.2d 295, 297 n.4
(Alaska 1991).

     5    Id.

     6    DeYonge, 1 P.3d at 94.

     7     Grove v. Alaska Constr. & Erectors, 948 P.2d 454,  456
(Alaska  1997)  (quoting Miller v. ITT Arctic  Servs.,  577  P.2d
1044, 1046 (Alaska 1978)).

     8     Christensen  v. NHC Corp., 956 P.2d 468,  473  (Alaska
1998).

     9    Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987).

     10    Id. at 903.

     11    Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).

     12    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     13     City  of  North Pole v. Zabek, 934  P.2d  1292,  1295
(Alaska  1997)  (citing City and Borough of Juneau v.  Thibodeau,
595 P.2d 626, 629 (Alaska 1979)).

     14    See Alaska R. App. P. 202.

     15    Zabek, 934 P.2d at 1296.

     16    Alaska R. App. P. 402(b)(1).

     17    8 AAC 45.142.

     18    AS 23.30.155.

     19     Harp  v. ARCO Alaska, Inc., 831 P.2d 352, 358 (Alaska
1992).

     20    Id. (internal quotations and citations omitted).

     21    AS 23.30.250(a).

     22    For a further discussion of the Boards factual findings
see Part IV.B., infra.

     23    Alaska R. App. P. 212(c)(11).

     24    Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).

     25    Id.

     26    See Bauman v. State, Div. of Family & Youth Servs., 768
P.2d  1097, 1099 (Alaska 1989) (indicating that judges must  warn
pro se litigants on aspects of procedure when the pro se litigant
has filed a defective pleading).

     27    Administrative agencies have no jurisdiction to decide
issues of constitutional law such as a violation of ones right to
privacy.  See State, Dept of Labor, Wage & Labor Div. v. Univ. of
Alaska, 664 P.2d 575, 580 (Alaska 1983).

     28    Dougan failed to make a prima facie case of a violation
of his equal protection rights because he failed to show that the
board  intended to discriminate against him based on an arbitrary
and  unjustifiable  standard.  See  Rollins  v.  State,  Dept  of
Revenue,  Alcoholic  Beverage Control  Bd.,  991  P.2d  202,  210
(Alaska 1999).

     29     There was substantial evidence to support the  boards
findings  that  Aurora did not commit criminal violations  during
the proceedings.

     30     Claims of violations relating to construction project
permitting  and inspections are outside the jurisdiction  of  the
board.  See Univ. of Alaska, 664 P.2d at 580.

     31      The  exclusive  remedy  provision  of  the  Act  (AS
23.30.055)  prevents an employee from bringing  subsequent  civil
actions  arising out of work-related injuries and  the  board  is
without jurisdiction to hear civil claims.

     32    Claims made under AS 23.30.247 are required to brought
in  a private civil action.  The board is without jurisdiction to
decide such claims.

     33     Dougan  failed to offer any evidence as  to  how  the
boards late-filed decision prejudiced him.

     34     Dougan failed to offer any evidence as to how he  was
prejudiced by his claim having been heard by more than one panel.

     35    Since the board retained jurisdiction over this issue,
there  has  been no final judgment and it is not properly  before
this court.

     36     Rollins v. State, Dept of Revenue, Alcoholic Beverage
Control Bd., 991 P.2d 202, 211 (Alaska 1999).

     37    8 AAC 45.220(c)(3)(B).

     38    Irvine v. K&L Distribs., AWCB No. 00-0023 (2000).

     39    AS 23.30.220(a) states in pertinent part:

          (a)  Computation of compensation  under  this
          chapter shall be on the basis of an employees
          spendable weekly wage at the time of  injury.
          An  employees spendable weekly  wage  is  the
          employees gross weekly earnings minus payroll
          tax  deductions.  An employees  gross  weekly
          earnings shall be calculated as follows:
               (1)   if  at  the  time  of  injury  the
          employees  earnings  are  calculated  by  the
          week,  the  weekly  amount is  the  employees
          gross weekly earnings;
               (2)   if  at  the  time  of  injury  the
          employees  earnings  are  calculated  by  the
          month,  the  employees gross weekly  earnings
          are the monthly earnings multiplied by 12 and
          divided by 52;
               (3)   if  at  the  time  of  injury  the
          employees  earnings  are  calculated  by  the
          year, the employees gross weekly earnings are
          the yearly earnings divided by 52;
               (4) if at the time of injury the
                    (a)    employees    earnings    are
          calculated by the day, hour, or by the output
          of  the  employee, the employees gross weekly
          earnings  are  the  employees  earnings  most
          favorable   to  the  employee   computed   by
          dividing   by  13  the  employees   earnings,
          including  overtime  or premium  pay,  earned
          during  any period of 13 consecutive calendar
          weeks   within   the  52  weeks   immediately
          preceding the injury.
          
     40    882 P.2d 922 (Alaska 1994).

     41     AS 23.30.220(a) prior to the 1995 amendment stated in
          relevant part:
          
          (A)  The  spendable weekly wage of an injured
          employee  at  the time of an  injury  is  the
          basis for computing compensation.  It is  the
          employees gross weekly earnings minus payroll
          tax  deductions.  The gross  weekly  earnings
          shall be calculated as follows:
               (1)   the  gross  weekly  earnings   are
          computed   by  dividing  by  100  the   gross
          earnings  of the employee in the two calendar
          years immediately preceding the injury;
               (2)  if the employee was absent from the
          labor market for 18 months or more of the two
          calendar  years  preceding  the  injury,  the
          board  shall  determine the  employees  gross
          weekly  earnings for calculating compensation
          by  considering the nature of  the  employees
          work  and work history, but compensation  may
          not   exceed   the  employees  gross   weekly
          earnings at the time of the injury.
          
     42    Gilmore, 882 P.2d at 929.

     43    Id. at 928-29.

     44    Id. at 929 n.15.