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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Robertson v. American Mechanical, Inc. (7/19/2002) sp-5595

Robertson v. American Mechanical, Inc. (7/19/2002) sp-5595

     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,


JOHN ROBERTSON,               )
                              )    Supreme Court No. S-10048
               Appellant,          )
                              )    Superior Court No.
     v.                       )    4FA-00-01558 CI
and ALASKA NATIONAL           )
                Appellees.           )    [No. 5595  -  July  19,

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Ralph R. Beistline, Judge.

          Appearances:   Arthur L. Robson,  Robson  Law
          Office, Fairbanks, for Appellant.  Michael P.
          McConahy,  McConahy,  Zimmerman  &   Wallace,
          Fairbanks, for Appellees.

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

          MATTHEWS, Justice.


           John Robertson appeals the superior court decision  of

January   26,   2001,  that  upheld  both  the  Alaska   Workers'

Compensation   Board's  dismissal  of  his  amended   report   of

occupational  injury  as  well as its subsequent  denial  of  his

petition  for  reconsideration and rehearing.   Robertson  argues

that the Board erred by finding that his amended claim was barred

by  res  judicata,  collateral  estoppel,  untimeliness,  laches,

equitable  estoppel,  and  quasi-estoppel.   Because  the   Board

correctly dismissed Robertson's amended claim on the basis of res

judicata, we affirm the superior court's decision.


           John  Robertson began working for American Mechanical,

Inc., (AMI) in February 1994 as a house painter and texturer on a

project  at Fort Wainwright.  He continued to work for AMI  until

December  1995.  While working for AMI, Robertson went  to  North

Pole  Chiropractic  Clinic on September  2,  1994,  for  what  he

believed  to  be  a back strain.  He began periodic  chiropractic

adjustments  for  this  back  problem.   On  October  27,   1994,

Robertson  returned to the North Pole Chiropractic Clinic  for  a

back  injury  allegedly suffered on October 26.  He  visited  the

North Pole Chiropractic Clinic regularly between September 2  and

the end of January 1995.

           One and one-half years after the injury, on April  24,

1996,  Robertson  visited orthopedist Dr. Carl  Unsicker  at  the

Fairbanks  Clinic, complaining of back pain and numbness  in  his

right leg.  Dr. Unsicker examined Robertson and took x-rays  (but

did  not order an MRI), finding that Robertson had a "good  range

of  motion," and likely suffered from "[l]umbar degenerative disc

disease, L5/S1," which he determined "was probably preexistent to

the  onset  of  his  discomfort."  He  recommended  Ibuprofen  as


           Robertson  next consulted orthopedic surgeon  Dr.  Roy

Pierson on May 16, 1996.  Robertson reported to Dr. Pierson  that

he  was  injured  on  the job in October of  1994.   Dr.  Pierson

examined Robertson, and following an MRI, diagnosed him as having

a  herniated nucleus pulposus in the L5-S1 area, with right lower

extremity neuropathy.  Dr. Pierson recommended epidural cortisone

injections,  which  Robertson  declined,  citing  concerns   over

insurance  coverage.  Dr. Pierson prescribed  Naprosyn,  and  put

Robertson  on  "light duty work lifting less  than  30  lbs.  and

limited bending [and] stooping [for] 2 months."

           Robertson did not officially report the injury to  AMI

until June 4, 1996, following his consultations with Dr. Pierson.

However, he claims that his supervisor knew of his injury in  the

fall  of 1994.  Unfortunately, his supervisor subsequently  moved

out  of  state  and has since died, making Robertson's  assertion

impossible  to  verify.  AMI's human resources  manager  asserted

that  the  company  had  no  notice of  his  back  problem  until

Robertson filed his claim, a year and a half after the injury.

          Robertson filed a report of occupational injury on June

4,  1996, reporting a lower back injury on October 26, 1994.  The

Board  heard his claim for benefits on June 5, 1997.   The  Board

denied Robertson's claim in its decision and order dated July 22,

1997.   The  Board  found  that  Robertson  presented  sufficient

evidence to raise the presumption of compensability.  However, it

found  that  AMI produced substantial evidence that overcame  the

presumption and that Robertson failed to establish his claim by a

preponderance of the evidence.

           Robertson  moved for a modification of this  decision.

The  Board  denied his motion, concluding that it was  "solely  a

back-door  attempt to reopen and retry the employee's case,"  and

that  Robertson had "not presented sufficient evidence to support

a  rehearing  and modification . . . ."  Robertson appealed  this

denial  of  modification to the superior court.   Superior  Court

Judge  Charles  R. Pengilly affirmed the Board's  denial  of  the

motion  for modification on procedural grounds, noting that  even

absent Robertson's procedural failure the court would affirm  the

Board's  decision  on  substantive grounds.   Robertson  did  not

appeal the superior court's decision.

           On  the same day that he filed his first appeal in the

superior court, Robertson filed an amended report of occupational

injury.   This  amended claim was functionally identical  to  his

original report, but argued that his injury may have occurred  as

early  as  September  1,  1994,  as  opposed  to  October  26  as

originally  claimed.   The  Board dismissed  Robertson's  amended

claim  on  the  basis  that it was barred  by  res  judicata  and

collateral  estoppel,  as well as by its  untimeliness  under  AS

23.20.100(a) and AS 23.30.105(a), and by the equitable principles

of laches, equitable estoppel and quasi-estoppel.

           Robertson  requested  that the  Board  reconsider  its

dismissal  of  his  amended  claim, but  the  Board  denied  this

request,  reiterating that his claim was barred by res  judicata,

collateral  estoppel, untimeliness, laches,  equitable  estoppel,

and  quasi-estoppel,   and  saying  that  he  had  "not  provided

sufficient basis for [] reconsideration and rehearing."

          Robertson appealed the Board's dismissal of his amended

claim  and  its denial of reconsideration to the superior  court.

In  his  appeal,  Robertson argued that (1) the  Board  erred  by

refusing to reconsider its denial of his amended report; (2)  the

Board  erred in accepting testimony of Dr. Unsicker over that  of

Dr.   Pierson;  (3)  Robertson  should  be  covered  by  workers'

compensation  whether  his injury was caused  on  October  26  or

September  2, 1994; and (4) Robertson's claim was not  barred  by

laches, untimeliness, res judicata, or estoppel.

           On  January  26, 2001, Superior Court Judge  Ralph  R.

Beistline  held  that  Robertson's  claims  were  barred  by  res

judicata.   Alternatively, he found that the Board's  conclusions

of  fact  were  supported by substantial  evidence.   He  further

upheld,  under a reasonable basis test, the Board's finding  that

Robertson's  amended  claim was barred by untimeliness  under  AS

23.30.100(a)  and  AS  23.30.105(a).  He declined  to  reach  the

question of whether Robertson's amended claim was properly barred

for the other listed reasons.  This appeal followed.


           In cases in which the superior court has served as  an

intermediate  court  of  appeal of an agency  decision,  we  will

independently review the merits of the administrative  decision.1

We  review  an  administrative  agency's  findings  to  determine

whether they are supported by substantial evidence.2  Substantial

evidence  is "such relevant evidence as a reasonable  mind  might

accept as adequate to support a conclusion."3  We will uphold the

Board's  decisions  as to the credibility of witnesses,  if  such

decisions are supported by substantial evidence,4 as "[i]t is not

this court's role to reweigh the evidence."5  We review questions

of law using our independent judgment.6


     Robertson's Amended Claim Was Barred by Res Judicata.

           The  Board  found that the principles of res  judicata

barred  Robertson's  amended  claim.   We  have  held  that   res

judicata,  or  claim preclusion, applies to workers' compensation

cases,   however  it  is  not  always  applied  as   rigidly   in

administrative  proceedings as it is  in  judicial  proceedings.7

When   applicable,  res  judicata  precludes  a  subsequent  suit

"between  the  same parties asserting the same claim  for  relief

when  the  matter raised was or could have been  decided  in  the

first  suit."8   It requires that "(1) the prior judgment  was  a

final   judgment  on  the  merits,  (2)  a  court  of   competent

jurisdiction rendered the prior judgment, and (3) the same  cause

of action and same parties or their privies were involved in both


           In  finding that the amended claim was barred  by  res

judicata,  the  Board found that "[t]he issue to  be  decided  is

identical  to  that already litigated: whether  the  employee  is

entitled  to  workers' compensation benefits for his  lower  back

condition.   The  employee does not assert that  he  sustained  a

different  injury  on  September 1, 1994.  Indeed,  the  employee

admitted that the claims are identical."

           We  hold that Robertson's claim is barred by the  rule

against claim splitting, which is "a conventional application  of

the doctrine of res judicata."10  The rule against claim splitting

provides  that  "all  claims arising out of a single  transaction

must  be brought in a single suit, and those that are not  become

extinguished  by the judgment in the suit in which  some  of  the

claims  were  brought."11  When analyzing claim  splitting,  "the

relevant  inquiry is not whether the two claims are  grounded  in

different  theories,  but whether they  arise  out  of  the  same

transaction or core set of facts."12  Robertson had the option of

arguing  in  his  original claim that he was  either  injured  on

October  26,  or alternatively that he was injured while  working

for  AMI on September 1 and aggravated the injury on October  26.

Because  both  claims are based on the same injury and  the  same

"core  set  of  facts,"  these claims should  have  been  brought

together.   Because they were not, Robertson's amended  claim  is

barred by res judicata.13


           Because  the  Board  correctly  dismissed  Robertson's

amended  claim  on  the  basis of res  judicata,  we  AFFIRM  the

superior court's decision.

1Tolbert v. Alascom, Inc., 973 P.2d 603, 606-07 (Alaska 1999).
2Grove  v.  Alaska Constr. & Erectors, 948 P.2d 454, 456  (Alaska
3Id.  (quoting Miller v. ITT Arctic Servs., 577 P.2d  1044,  1046
(Alaska 1978)).
4Williams v. State, Dep't of Revenue, 938 P.2d 1065, 1069 (Alaska
5DeYonge  v.  NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000)  (citing
Miller, 577 P.2d at 1049).
6Phillip  Weidner & Assocs., Inc. v. Hibdon, 989  P.2d  727,  730
(Alaska 1999).
7McKean v. Municipality of Anchorage, 783 P.2d 1169, 1171 (Alaska
8State v. Smith, 720 P.2d 40, 41 (Alaska 1986).
9Tope v. Christianson, 959 P.2d 1240, 1243 (Alaska 1998).
10McDowell v. State, 23 P.3d 1165, 1167 n.9 (Alaska 2001).
11Osborne v. Buckman, 993 P.2d 409, 412 (Alaska 1999).
12McDowell, 23 P.3d at 1167.
13Because we hold that Robertson's amended claim is barred by res
judicata, we do not reach his arguments that the Board  erred  in
giving more weight to Dr. Unsicker's diagnosis of his injury than
to  Dr.  Pierson's,  or  that his injury  should  be  covered  by
workers'  compensation regardless of whether the injury  occurred
on September 1, 1994, or October 26, 1994.