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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Williams v. Abood (8/16/2002) sp-5607

Williams v. Abood (8/16/2002) sp-5607

          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)


BRUCE WAYNE WILLIAMS,              )
                              )    Supreme Court No. S-9806/9836
            Appellant/Cross-Appellee,   )
                              )    Superior Court No.
     v.                       )    3AN-99-03331 CI
PATRICK ABOOD, d/b/a KNIK          )    )    O P I N I O N
SWEEPING COMPANY and          )
PROVIDENCE WASHINGTON              )     )     [No. 5607 - August
                                   16, 2002]
INSURANCE, insurer,                     )
           Appellees/Cross-Appellants.  )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:  Charles W. Coe, Law Offices  of
          Charles     W.     Coe,    Anchorage,     for
          Appellant/Cross-Appellee.  Patricia L.  Zobel
          and   John  D.  Harjehausen,  DeLisio   Moran
          Geraghty    &    Zobel,    Anchorage,     for
          Appellees/Cross-Appellants.      Toby      N.
          Steinberger,   Assistant  Attorney   General,
          Anchorage,  and  Bruce M.  Botelho,  Attorney
          General,   Juneau,  for  Appellee  State   of
          Alaska,    Department   of   Labor,   Workers
          Compensation Board.

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

          CARPENETI, Justice.


          Bruce  Wayne  Williams sustained a  knee  injury  while

working as a driver of a street sweeper for Knik Sweeping Company

on  August  21,  1992.  The Workers Compensation  Board  resolved

several  disputed issues; Williams appealed the boards   decision

to  the superior court.  Williams appeals several aspects of  the

superior  courts decision affirming the boards rulings, and  Knik

cross-appeals  the decision by the superior court to  remand  the

issue  of  attorneys  fees for Williamss first  attorney,  Darryl

Jones, to the board.  We affirm the board in all respects.


     A.   Facts

          On  August  21, 1992, Bruce Williams injured  his  left

knee while on the job driving a street sweeper for Patrick Abood,

d/b/a  Knik  Sweeping Company.1  Immediately after the  accident,

Williams  received emergency care and subsequently  began  seeing

Dr.  Robert  Gieringer.  Williams underwent several  arthroscopic

surgeries,  including  a  patellectomy2  and  reconstruction   on

January  20,  1994.  During this surgery, Williamss  patella  was

wired together.  Knik accepted the workers compensation claim and

provided medical benefits and Temporary Total Disability (TTD) at

a rate of $162.39 per week.

          Williamss  compensation rate was determined  using  the

version  of AS 23.30.220(a)(1) in effect at the time of Williamss

injury.   The compensation rate was based on wage and tax records

provided  by Williams for 1990 ($5,133.00) and 1991 ($19,758.75),

yielding  gross weekly earnings of $249.00.  Dr. Gieringer  found

that  Williams was medically stable on April 5, 1994 and that  he

had  a  Permanent  Partial Impairment Rating  (PPI)  of  eighteen

percent.  Williams was released to return to work, and Knik  paid

him a lump-sum of $21,098.60 in PPI benefits on April 13, 1994.

          Williams changed doctors and started treatment with Dr.

David  A.  McGuire.   On May 9, 1995 Williams  underwent  another

surgery  to  remove the wire around his patella.  Knik reinstated

TTD benefits effective May 9, 1995.  Williams continued to be  in

pain, and underwent yet another surgery in which Dr. Harold  Dunn

          performed a total knee replacement on March 5, 1997.  Williams

also  underwent  interdisciplinary  physical  rehabilitation  and

narcotics weaning at the University of Utah from March 1, 1997 to

May 7, 1997.

          On  May  27 Williams was admitted to Providence  Alaska

Medical   Centers  mental  health  unit  for  suicidal  ideation.

Williams was released from this facility on June 9, 1997  by  his

treating psychiatrist, Dr. Cleve R. Shirey.  Dr. Shirey diagnosed

Williams  with  major depression, pain disorder, cannabis  abuse,

iatrogenic   narcotic  dependency,3  personality   disorder   not

otherwise specified, several psycho-social and physical problems,

and  a global assessment of functioning4 (GAF) rating of seventy.

On  June 4 there was a teleconference between the parties,  their

attorneys,  and  the  health-care  professionals  in  charge   of

Williamss care to coordinate narcotic pain management.   Everyone

involved  agreed  to  wean Williams off  narcotics,  as  much  as

possible, through a series of blind pain cocktail dosages.

          Williams  hired attorney Darryl Jones to represent  him

in  a  variety  of claims against Knik.  On July  2  the  parties

entered  into a Partial Compromise and Release that was  approved

by the Workers Compensation Board and signed by Williams and both

attorneys.   The  compromise  and  release  identified   disputes

between  the  parties over medical travel expenses,  prescription

reimbursement,  payment for a Jacuzzi, lounge chair,  and  sauna,

penalties  for  bad  faith  controversion,  and  interest.    The

compromise  and  release  waived  Williamss  claims  for  medical

benefits,  travel  expenses, penalties, interest,  and  frivolous

controversion prior to July 1, 1997 in exchange for  $9,000  plus

$1,150 in reasonable attorneys fees.

          Also  on  July  2  Williams and his attorney  signed  a

separate Release and Settlement Agreement dealing with issues  of

bad faith.  In the release and settlement, Williams released Knik

from  all  claims  of bad faith under statute and  tort  law  for

actions  through July 2, 1997 in exchange for $11,500 and  $1,350

          in attorneys fees.

          On  July  28  Dr. Dunn released Williams to  vocational

rehabilitation  and  Knik  requested  reemployment  benefits  for

Williams under AS 23.30.041.  Dr. Dunn prescribed a home gym  and

physical  therapy for Williams on November 11.   On  December  19

Knik   controverted  the  home  gym  as  excessive  due  to   the

prescription of physical therapy and an already-provided exercise

bicycle  and  Jacuzzi.  However, Knik subsequently  provided  the

home  gym  when  Dr.  Dunn  indicated  that  Williams  should  be

transitioned  from  formal physical therapy to  a  home  exercise


          On   November  21  Williams  was  treated  at   Central

Peninsula  General Hospital by Dr. Robert Ledda after falling  on

black  ice  and  injuring  his back,  buttocks,  and  left  knee.

However, a report by Dr. Ledda stated that the treatment  was  of

the  right knee.  Knik received a bill for treatment of the right

knee  that  was  not  accompanied  by  a  medical  record.   Knik

controverted  the bill, as treatment of the right  knee  was  not

related to any employment-related injury.

          On  February 24, 1998 rehabilitation specialist  Robert

Sullivan  determined  that  Williams  met  all  the  reemployment

eligibility requirements in AS 23.30.041 but recommended that the

reemployment  benefit file be closed based on two considerations.

First,   Williams  wrote  a  letter  on  February  22   declining

reemployment benefits and requesting $10,000 in lieu of training.

Second,  Dr. Shirey, Williamss treating psychiatrist,  stated  in

February  1998 that Williams was unable to be gainfully  employed

at   that   time.    In   response,  the  Reemployment   Benefits

Administrator   closed   the   reemployment   file    and    Knik

recharacterized  Williamss benefits from TTD to  Permanent  Total

Disability (PTD) benefits on March 24.

     B.   Proceedings

          On  March  31, 1998 Williams filed a petition with  the

board  requesting a variety of benefits.  The issues were amended

in a series of prehearing conferences.  The board heard Williamss

claims and listened to a plethora of witnesses at the hearing  on

November 5 and 6, 1998, in connection with Williamss compensation

claims.   Charles W. Coe took over as Williamss attorney for  the

hearing because Jones was to be a witness at the hearing  on  the

issue  of  setting aside the compromise and release.   The  board

also heard evidence on the value of services rendered by Jones on

behalf  of  Williams.  Specifically, Jones submitted an affidavit

prepared by Williamss wife containing a spreadsheet of the  hours

Jones   expended   on  Williamss  claims.   Jones   also   orally

supplemented  his  affidavit  during  the  hearing,  submitted  a

corrected  affidavit  on  November 4, 1998,  and  filed  a  third

affidavit  on November 9.  Knik objected to the consideration  of

the  affidavits  filed  on November 4 and November  9  since  the

preconference order directed Coe to serve the affidavits no later

than October 28.

          The board denied and dismissed many of Williamss claims

including:  that he was entitled to PTD benefits from August  21,

1992 through March 23, 1998; that the compensation rate should be

adjusted  under  AS  23.30.220; that the compromise  and  release

should   be   set  aside;  that  Knik  unfairly  or   frivolously

controverted  claims  under AS 23.30.155(d)  and  (o);  and  that

Williams   was   entitled  to  additional  penalties   under   AS


          The  board  awarded Williams $6,046 for Coes  attorneys

fees  plus  $570 in costs.  Coe was awarded half of  the  claimed

attorneys  fees  because  Williams prevailed  on  relatively  few

issues  at  the  hearing.  The board found that one-half  of  the

claimed  fees  was  reasonable  when  taking  into  account   the

complexity  of the claims, the large number of claims  addressed,

and   the   benefit  to  Williams  in  the  partially  successful

prosecution of the claims.  The board found that full costs  were


            The board also awarded Williams the statutory minimum

attorneys  fees for Joness services and $450 for Joness testimony

as  a  witness.  The board did not consider the November 4,  1998

affidavit   because  it  was  submitted  in  violation   of   the

preconference order requiring affidavits to be filed  by  October

28.   The  board also did not consider the November 9  affidavit.

The board ruled that this affidavit was submitted after the board

closed the record for the hearing.  Finally, the board found that

the  listings in the affidavit filed on October 28 were not clear

enough to make a well-supported award of fees.

          Williams filed a motion for reconsideration, asking the

board  to  reconsider the rulings on the claims that were  denied

and dismissed and the award of attorneys fees for the services of

both Coe and Jones.  Williams also argued that he was denied  his

right to due process because a videotape of the proceedings shows

that  one  of  the panel members was asleep during testimony  and

arguments.   Williams  does not identify which  panel  member  he

claims  fell asleep during the proceeding.  The board  issued  an

Interlocutory Decision and Order finding that the parties  had  a

full  opportunity  to  present evidence at the  hearing  for  the

boards consideration.  However, the board did retain jurisdiction

over the motion for thirty days in order to review the videotape.

The   board   then  issued  a  Final  Decision   and   Order   on

Reconsideration  finding that a review of  the  videotape  showed

that  all  three members of the panel were actively participating

in the hearing and that there was no evidence that one member was


          Williams  appealed the boards decision to the  superior

court.  He challenged the boards decision regarding the issues of

recharacterization  of  benefits  to  PTD,  a  compensation  rate

adjustment, unfair controversion, additional penalties,  and  the

attorneys  fees  awarded for both Coes and Joness  services.   In

addition, Williams also appealed the boards denial of his  motion

for reconsideration, claiming that a panel member was sleeping at

various  times of the proceeding and that the board did not  give

due  consideration to the evidence presented.  The superior court

affirmed the decision of the board on all issues except  for  the

award  of  attorneys  fees  to Jones.   With  respect  to  Joness

attorneys fees, the superior court held that the board  erred  in

not  considering  Joness  amendment  to  his  affidavit  and  his

supplemental affidavit.  The superior court found that the policy

consideration  of  making attorneys fees fully  compensatory  and

reasonable  so  that  injured  workers  would  be  able  to  find

competent   counsel  necessitated  that  the  board  take   these

affidavits into account.  Accordingly, it remanded the matter  so

that  the  board  could review the late-filed  affidavits  before

formulating its attorneys fee award.

          Williams appeals the superior courts ruling.  Knik  has

filed  a cross-appeal claiming that the superior court improperly

remanded  the  issue  of  Joness  fees  back  to  the  board  for

consideration of the late-filed affidavits.


          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.5    In

questions  of  law involving the agencys expertise, the  rational

basis standard will be applied and the agencys determination will

be  deferred to so long as it is reasonable.6  The rational basis

standard  is  applied where the agencys expertise is involved  or

where  the  agency has made a fundamental policy  decision.7   We

will substitute our own judgment for questions of law that do not

involve   agency  expertise  or  where  the  agencys  specialized

knowledge  and experience would not be particularly probative  as

to  the  meaning of the statute.8  We will adopt the rule of  law

that  is  most  persuasive  in light of  precedent,  reason,  and


          Factual  findings made by the board are reviewed  under

the  substantial evidence standard.10  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.11

          A  compromise and release is interpreted  in  the  same

manner as any other contract.12  We review the interpretation of a

contract  de  novo  when the underlying facts  are  undisputed.13

However,  we  review  a  contract under the substantial  evidence

standard when the issue is the intent of the parties when forming

the contract.14

          Unless  statutory interpretation is required, we review

an  award  of  attorneys fees by the board  under  the  abuse  of

discretion  standard.15  The award of attorneys  fees  should  be

upheld unless it is manifestly unreasonable.16

     A.   The Superior Court Erred in Remanding the Issue of Joness
          Attorneys Fees for Consideration of the Late-Filed Affidavits.
          A.   We consider first Kniks cross-appeal.  We do this because it

raises  a threshold issue that affects our jurisdiction over  the

entire case.  Knik claims on cross-appeal that the superior court

erred  in remanding the issue of Williamss attorneys fees to  the

board  for  consideration of affidavits excluded at the  hearing.

When a superior court acts as an intermediate appellate court,  a

decision  reversing  and remanding an agency ruling  for  further

adjudication  is not a final judgment.17  However,  we  have  the

discretion  to  treat this as a petition for review  pursuant  to

Appellate Rule 402.18  And we have, in appropriate cases, reached

the merits of a case by treating an otherwise premature appeal as

a petition for review.19  We may review a non-final judgment when

postponement  of  review  will result in unnecessary  expense  or

delay.20  Because we conclude below that the superior court erred

in  remanding this issue, we will treat this appeal as a petition

for review in order to avoid unnecessary delay.

          The  board decided not to consider affidavits filed  by

Jones  on November 4 and November 9, 1998 because they were filed

late.   On  October 14, 1998, the board had issued  a  prehearing

conference   order   specifically   directing   that   affidavits

concerning attorneys fees and costs be filed and served no  later

          than October 28.  The board held Jones to the terms of the

prehearing  order and did not consider the affidavits  filed  and

served  after  the October 28 deadline.  The board  did  consider

Joness affidavit filed on October 28 but found this affidavit  to

be  largely  undecipherable  and,  to  the  extent  it  could  be

deciphered, inaccurate.

          The board held Jones to the prehearing order, which  it

had  the  authority  to do.21  We have held that  the  board  has

discretion to exercise reasonable control over its proceedings to

ensure the orderly administration of justice.22  While there is a

policy  in favor of making attorneys fees in workers compensation

cases fully compensatory, the policy does not relieve an attorney

from  following the procedural rules for obtaining  compensation.

Jones  filed the second affidavit one day before the hearing  and

the  third affidavit after the hearing was over.  No reasons have

been  offered by Jones or Williams as to the reasons for the late

filing.  And it hardly seems fair to give the employer one day to

look  over six years of attorneys fees and then to allow  another

affidavit after the record for the hearing has closed.  Jones was

on notice as to the requirements for filing his affidavit and the

board   acted  within  its  discretion  to  hold  him  to   those

requirements.            As for the affidavit filed by  Jones  on

October  28, 1998, it contains illegible  handwritten  notes,  it

shows no total number of hours expended, and the entries are  not

in  chronological order, among other problems.  The board  cannot

be   expected  to  decipher  it.   Although  the  board  may  not

arbitrarily  deny  attorneys fees, the  one  affidavit  filed  in

compliance with the boards order is incomprehensible.

          In  sum,  the  board  did not abuse its  discretion  in

awarding  Williams  the statutory minimum in attorneys  fees  for

Joness  representation.  It was entitled to reject the late-filed

affidavits,  and the one timely affidavit did not  establish  the

case for more.

     B.   The  Superior Court Did Not Err in Affirming the Boards
          Decision Denying Williamss Claim for PTD Benefits from August 21,
     1992 through March 23, 1998.
          A.   Williams claims that he was totally and permanently disabled

from  the  day of the accident.  Williams alleges that the  board

failed  to apply to his claims the presumption that injuries  are

compensable.  We disagree.

          Under  the  Workers  Compensation  Act,  there   is   a

presumption in favor of compensability.23  We have held that  the

presumption includes claims for PTD benefits.24  Williams received

benefits  for the entire period of August 21, 1992 through  March

23,  1998  and  the only question is at what point  his  loss  of

earning capacity became permanent.

          The   only  evidence  Williams  provided  that  he  was

permanently  disabled  from  the  date  of  injury  was  his  own

testimony.   However,  the  board found  Williams  not  to  be  a

credible  witness and [t]he board has the sole power to determine

the  credibility  of  a  witness.25  Also,  Williams  offered  no

concrete medical evidence that he was permanently disabled as  of

the date of his injury.

          Williamss  claim  that the board failed  to  apply  the

statutory  presumption to his PTD claim  is  incorrect.   In  its

Final   Decision  and  Order,  the  board  clearly  applied   the

presumption to Williamss claim.  In fact, the board set  out  the

case  law behind the presumption in an extended discussion.   The

board  went  on  to  find  that Williams did  not  establish  the

necessary link for the presumption to attach.  Finally, the board

assumed that he did establish the link and analyzed the matter as

the  law  requires.   First, the Board found that  prior  to  Dr.

Shireys  evaluation  on  February 10,  1998,  none  of  Williamss

doctors  stated that he was permanently disabled  and  unable  to

return  to work.  The Board also found that Williams was released

to  work  on April 5, 1994 by Dr. Gieringer and released to  seek

reemployment  training  on July 28,  1997  by  Dr.  Dunn.   These

findings  are  supported by the record.  Finally, there  is  also

various medical evidence in the record to show that, before March

          23, 1998, the doctors were optimistic that Williams would not be

permanently   disabled.   The  board  applied   the   presumption


     C.   The  Superior Court Did Not Err in Affirming the Boards
          Decision Denying Williamss Claim for a Compensation Rate
           Williams argues that the board erred in denying him  a

compensation  rate  adjustment.  He claims that  the  information

relied  on by the board in determining his compensation rate  was

inaccurate.   Alaska Statute 23.30.220(a) governs the calculation

of a compensation rate.26

          The  board relied on Williamss W-2 statements for 1990,

1991, and 1992.  Williams argues that his W-2s were an inaccurate

predictor  of  his  earning capacity.  Williams  claims  that  he

worked for Patrick Abood on several jobs in which the wages  were

not  accurately reported to the Internal Revenue Service and that

he  had  additional sources of income.  Because Williams believes

that  the W-2 forms do not accurately reflect his earnings  while

employed by Knik, Williams states that the board should have used

his  hourly  rate times forty hours per week and then  taken  his

additional  income into account.  However, there  was  sufficient

evidence for the board to find that Williamss W-2 forms  were  an

accurate predictor of his lost earning capacity.

          Williamss  W-2s indicate income of $5,133.00  in  1990,

$19,758.75 in 1991, and $9,766.75 in 1992.  The board found  that

the  earnings  reported  on  his W-2s were  consistent  with  the

earnings  that  Williams reported in his income tax  returns  and

what  he  reported to his claims adjuster, George Klim.  Williams

provided  no  documentation of any additional wages.   The  board

also  found  that Williamss Employment Security Division  records

for  1992  show that Williams collected unemployment benefits  in

1992 for about six out of the eight months prior to his injury.

          The   boards  findings  are  supported  by  substantial

evidence in the record.  First, Williamss tax returns report  the

same  amounts  as  reported by Knik on the  W-2  forms.   Second,

          George Klim testified at the board hearing that Williams never

stated that he had additional sources of income and that,  if  he

had,  his  rate  would have been adjusted accordingly.   Williams

stated  in  a  form  sent to the Department  of  Labor  that  his

earnings  for  the  two years prior to the injury  were  $24,892,

which  is exactly the sum of the income reported on his W-2 forms

for  1990 and 1991 as rounded to the nearest dollar.  The  boards

findings  are  also  supported by Williamss  Employment  Security

Division records for 1992 because they show that he had no source

of  income  during that year other than his job with  Knik.   The

only evidence offered to support additional earnings is testimony

by  Williams, and, as stated above, the board found Williams  not

to  be  a  credible witness.  The board therefore had substantial

evidence  to  find  that  Williamss W-2 forms  were  an  accurate

predictor of his earning capacity.

          Williams  additionally argues that  application  of  AS

23.30.220(a)  led to an incorrect compensation rate,  relying  on

Gilmore  v. Alaska Workers Compensation Board.27  In Gilmore,  we

found  that the version of AS 23.30.220 in effect at the time  of

Williamss  injury was unconstitutional under the equal protection

clause  as  applied  to that case.28  Former  AS  23.30.220(a)(1)

required that the gross weekly earnings of an employee present in

the  labor  market for six months or more were to  be  calculated

according  to a mechanical formula that took gross wages  over  a

two-year period and divided this sum by 100.29  This formula  was

applied regardless of how many weeks the employee actually worked

during  the period, and Gilmore had actually worked only  thirty-

nine weeks in the preceeding 100.30  We held that this mechanical

application violated Gilmores equal protection rights because, as

applied  to  him,  the  benefit  level  bore  no  more   than   a

coincidental  relationship to the goal  of  compensating  injured

employees for their actual loss.31  In Thompson v. United  Parcel

Service,32  we  explained our ruling in  Gilmore.   Thompson  was

injured  two  weeks after involuntarily changing  from  full-time

          work to part-time work.  Under AS 23.30.220(a) her gross weekly

earnings  were based on her full-time pay because Thompson  filed

an  application for adjustment to increase her compensation  rate

by  having her earnings from her previous full-time job  included

and  her application was granted.  Her employer claimed that this

change  in  her status required that the board deviate  from  the

statutory formula used to determine the rate of pay to  which  an

injured party is entitled.33  We rejected that argument and  held

that  the  statutory formula in AS 23.30.220(a) must be  used  to

calculate  the employees gross weekly earnings.34  We made  clear

that  departure  from  the statutory formula  must  be  based  on

substantial  evidence supporting the conclusion  that  past  wage

levels  will lead to an irrational workers compensation  award.35

Specifically, there must be substantial evidence that past  wages

are  an  inaccurate predictor of loss due to injury.36  We stated

that  the  inquiry  is  not to determine  whether  the  statutory

application  led  to  a  fair result,  but  whether  the  formula

accurately predicted what the employee would have earned  had  he

or she not been injured.37

          Since Williams is the party asking for a deviation from

AS  23.30.210(a), he must present substantial evidence  that  the

use of past wages will lead to an irrational workers compensation

award.  Williams cites testimony in support of his claim that  he

made  more  than his W-2 forms reflect.  However,  the  testimony

cited  does not constitute substantial evidence that use  of  his

past wages will lead to an irrational workers compensation award.

Williams cites Patrick Aboods testimony that checks were  written

out  to  Williamss  girlfriend instead  of  Williams,  but  Abood

testified  that  the  income reflected in  the  check  was  still

attributed to Williams in his W-2 forms.  Williams claims that he

did  work  around Aboods house that he was paid  for,  but  Abood

testified  that Williams did the work as a favor  to  Abood,  and

Abood  never  paid Williams for this work.  Williams also  states

that  his  income from his mobile home business should have  been

          taken into account.  However, the supplemental income and loss

form filed with the IRS by Williams in 1991 shows that the mobile

home business was operating at a loss.

          Next, Williams cites the testimony of a friend who also

worked  for  Knik, Daniel Neisinger, to support  Williamss  claim

that  he  worked more than what was reflected on his  W-2  forms.

Neisinger  testified that he believed that Williams  worked  more

than  Neisinger did and that Neisingers  personal income in  1990

was  $19,633.  Neisinger also testified that Knik made errors  in

the  W-2 form sent to the IRS for Neisingers earnings in 1990 and

1991 and that Williams did some work around Patrick Aboods house.

But  the  board  explicitly found that it could  not  accord  any

substantial  weight  to  Mr. Neisingers  testimony,  pointing  to

documentary  evidence  that  refuted  it.   Moreover,  Neisingers

testimony  appears  to be mere speculation  about  what  Williams

earned  while  working for Knik; it is not  based  on  first-hand

knowledge.  The boards decision to discount Neisingers  testimony

was  not  clearly erroneous.  The only other evidence offered  by

Williams is his own testimony.

          Williams also claims that the board erred in failing to

apply  the presumption in favor of compensability 38 to his claim

for a compensation rate adjustment.  Applying the presumption  of

compensability would be inconsistent with our holding in Gilmore.

As   discussed  above,  the  board  must  use  the   formula   in

AS  23.30.220(a) to calculate an employees gross weekly  earnings

unless  there  is substantial evidence supporting the  conclusion

that  past  wage  levels  will  lead  to  an  irrational  workers

compensation award.39  Here, Williams had the burden  of  proving

that  the  statute  was  an inaccurate predictor  of  his  future

earnings  loss  due  to injury.  Williams did  not  satisfy  that

burden.   Applying the presumption to a claim for a  compensation

rate  adjustment  would be in conflict with  the  rule  requiring

substantial evidence to be presented before the board can deviate

from the statutory formula.  Thus, Williams is not entitled to  a

          compensation rate adjustment under any theory argued.

     D.   The  Superior Court Did Not Err in Affirming the Boards
          Decision Denying Williamss Request To Set Aside His Partial
          Compromise and Release.
          A.   Williams claims that the board erred in failing to set aside

the compromise and release that was entered into on July 2, 1997.

A compromise and release approved by the board is enforceable the

same  as  an  order  or  award of the board  and  discharges  the

liability of the employer for the compensation.40  Williams gives

two  reasons why the compromise and release should be set  aside.

First,  Williams claims that he was mentally incompetent when  he

signed  the release.  Second, Williams claims that the compromise

and  release does not cover penalties for late payment on medical

bills.  We discuss these two claims separately.

          1.   The board did not err in finding Williams mentally


            Williams   argues  that  he  was  so  medicated   and

psychologically unstable at the time he signed the compromise and

release  that  he could not be expected to overcome the  pressure

put on him by Knik to sign the agreement.  The board found, by  a

preponderance  of  the  available  evidence,  that  Williams  was

mentally  competent  at the time he signed  the  agreement.   The

boards  findings  were  supported by substantial  evidence.   Dr.

Chandler testified that people who are on oral narcotics for many

months, as Williams was, are usually functional and able to  make

decisions.    Dr.   Shirey,   Williamss  treating   psychiatrist,

testified  that Williams was able to handle his own affairs  upon

his  release from the hospital on June 8, 1997.  Also  supporting

the boards findings is the fact that Williams was represented  by

counsel when he signed the agreement.  Williams offers no medical

testimony  to support the claim that he was mentally incompetent.

Therefore,  the  board did not err in finding  Williams  mentally

competent when he signed the compromise and release.

          Williams  also claims that Knik procured the compromise

and  release through duress.  Williams generally claims  that  he

          did not understand the extent to which he was releasing his

claims.  In Olsen Logging Co. v. Lawson,41 we held that the board

cannot  set  aside  a  compromise and release  on  the  basis  of

unilateral and mutual mistake grounds.42  We also stated  that  a

compromise  and  release, once approved by  the  board,  is  very

difficult  to  set aside.43  Accordingly, that Williams  did  not

understand the extent to which he was releasing his claims   even

if  true   is  not  a basis for setting aside the compromise  and

release.   We have held that the board can set aside a compromise

and  release  for fraud.44  However, Williams offers no  specific

evidence  that Knik acted intentionally.45  The board found  that

Knik  made good faith controversions and had sufficient  evidence

for  a difference of opinion with Williams.  Therefore, there was

no  evidence of fraud or duress and, thus, no reason to set aside

the compromise and release.

          2.   The   board  did  not  err  in  finding  that  the
               compromise and release covered penalties for  late
               payment of medical bills.
          Williams  claims that the board erred in  finding  that

the  compromise  and release released Knik from all  pre-July  1,

1997  penalties.  Williams claims that the parties did not intend

to release Knik from all penalties when the agreement was signed,

only those penalties relating to the specific issues addressed by

the  agreement.  A compromise and release is interpreted  in  the

same manner as any other contract.46  Because this issue presents

a  factual question  what the parties intended when they  entered

into   the  compromise  and  release   the  substantial  evidence

standard is used in reviewing the boards findings.

          Broad  language in settlement agreements  implies  that

all  claims  are  settled;  the parties must  specifically  state

claims  that  are not settled.47 Section 8 of the compromise  and

release  contains  language that releases the  employer  and  the

carrier  from any and all liability arising out of or in any  way

connected  with the issues listed above.  The use of  such  broad

language  contemplates the settling of all disputes  the  parties

          may have.  The issue of penalties and interest was contested by

the  parties at the time the parties entered into the  compromise

and release.  It is incongruous for the parties to use such broad

language  and  settle for a total sum of $20,500 while  intending

for certain issues to remain contested.  Also, the compromise and

release  listed penalties and interest as separate issues,  which

could  reasonably be read to mean that the parties were  settling

their  disputes over all penalties and interest prior to July  2,

1997.   Therefore, there was substantial evidence to support  the

boards  finding that the compromise and release covered penalties

on  untimely paid medical benefits.  Because substantial evidence

supported the board, we uphold its decision.

     E.   The  Superior Court Did Not Err in Affirming the Boards
          Decision Denying Williamss Claim for Additional Penalties under
          AS 23.30.155(e).
          A.   Williams claims that the carrier delayed in paying medical

bills  to  the point of delinquency, and is therefore liable  for

penalties.   He  notes that many medical bills were  controverted

because of a lack of documentation or failure to supply necessary

information  by  the  medical providers, and  asserts  that  this

delinquency  caused him severe emotional stress.  He argues  that

if he had been made aware of the documentation problems within  a

reasonable  time  he  would  have  been  able  to  aid  in  their

resolution and thereby avoid the stress he claims he suffered.48

          Medical  bills for an employees treatment must be  paid

by  the employer within fourteen days after the date on which the

employer  received  the  bill and a completed  report.49   Alaska

Statute 23.30.155 provides for a late penalty on all compensation

not  paid  within seven days after it has become due  unless  the

employer  has  filed a notice of controversion and  notified  the

employee  of  the  controversion.50  We have  held  that  medical

benefits   are  considered  compensation  for  the   purpose   of

AS  Therefore, the employer is liable for penalties

on  any  medical  bills  not paid within  twenty-one  days  after

receipt of the bill and a completed report.

          Williams  contends  that under 8  AAC  45.082(d)(1)  an

employer must notify an employee fourteen days after the bill  is

received  if  this bill will not be paid, even if  nonpayment  is

because  a  completed  report has not  been  received.   Williams

argues that an employer should also be liable for penalties  when

it  fails  to give notice to the employee that a report  was  not

received from the medical provider.  The board found this reading

of 8 AAC 45.082(d)(1), which it termed novel, to be wrong because

it  read subsection (d)(1) in isolation and without reference  to

the  rest of subsection (d).  The board found that payment is not

due  until the completed medical record is received and  that  no

notice  of  delay  or refusal to pay is due until  fourteen  days

after  the bill and the completed medical report are received  by

the employer.

          Since  this  regulation involves the expertise  of  the

board  in  determining when compensation benefits  are  due,  the

boards  findings are reviewed under a rational basis  standard.52

We  have held that a rational basis standard is applied when  the

agency  is   making  law  by creating standards  to  be  used  in

evaluating the case before it and future cases. 53  We uphold the

boards  findings because its interpretation is a reasonable  one.

First,  the  fourteen-day time period establishing a payment  due

date  under  8  AAC  45.082(d) does not  start  to  run  until  a

completed  report is received.54  This implies that the  employer

does not have to take action on the bill until a completed report

is received.  Second, penalties under AS 23.30.155(e) are imposed

solely  for  failure  to  make payment within  seven  days  after

payment  is due; there is no mention of a penalty for failure  to

notify.55   Therefore,  the board did not  err  in  finding  that

Williams was not entitled to penalties under AS 23.30.155(e).

     F.   The  Superior Court Did Not Err in Affirming the Boards
          Decision Denying Williamss Claims that Knik Unfairly or
          Frivolously Controverted Benefits.
          A.   An employee is entitled to penalties on compensation due if

compensation  is  not properly controverted  by  the  employer.56

          Williams claims that the board erred in finding that Knik

properly  controverted his claims.  We have held that an employer

must  have  sufficient evidence in order to  make  a  good  faith

controversion.57   Specifically, there must be  reliance  by  the

insurer  on  responsible medical opinion or  conflicting  medical

testimony.58  The board had substantial evidence to find that Knik

did not unfairly or frivolously controvert benefits after July 2,


          First,  the board found that Knik had specific evidence

to  controvert Williamss treatment at Central Peninsula  Hospital

on   January   28,   1998.    Christine  Preston,   Kniks   claim

representative,  testified  that the  only  treatment  notes  she

received  on the hospital bill indicated that treatment  was  for

the  right knee due to a fall.  This evidence is confirmed by  an

evaluation  report.  Since Williamss work-related injury  was  to

his   left  knee,  there  was  a  sufficient  medical  basis   to

controvert.   Therefore, the board did not err  in  finding  that

Knik did not act in bad faith.

          Second, the board found that Knik had specific evidence

to  controvert the home gym prescribed for Williams  on  November

25,  1997.   The  board found that there was  reasonable  medical

evidence that the same doctor was simultaneously, inconsistently,

prescribing formal physical therapy in a clinic.  This conclusion

is  supported  by  the prescriptions for both the  home  gym  and

physical  therapy.   This  finding  is  also  supported  by   the

testimony of Carol Jacobsen, a rehabilitation specialist  working

at  the  request  of  the  insurance company.   Thus,  there  was

substantial  evidence that Knik did not unfairly  or  frivolously

controvert this claim.

     G.   The  Superior Court Did Not Err in Affirming the Boards
          Decision Awarding Only One-Half of Coes Attorneys Fees to
A.              Williams claims that the board erred in  awarding

him  one-half of Coes actual fees.  The board felt that  one-half

of  Coes actual fees was reasonable under AS 23.30.145(b)  and  8

AAC   45.180.60   The  board  found  that  Williamss   case   was

complicated, extremely confusing, and tenaciously litigated.  The

board  also found that Coe devoted an exceptional number of hours

to  Williamss  case  in order to attend the hearing  and  replace

Jones,  who  testified at the hearing.  However, the board  found

that  Williams prevailed on relatively few issues.   Taking  into

account  the large number of issues addressed, the complexity  of

these issues, and the benefit to Williams in partially successful

prosecution of his claims, the board found that one-half of  Coes

actual fees was reasonable.

          We  have  held that awards of attorneys fees  under  AS

23.30.145 should be fully compensatory and reasonable,  in  order

that  injured workers have competent counsel available to them.61

However,  this  does  not mean that an attorney  representing  an

injured  employee in front of the board automatically gets  full,

actual  fees.    We held in Bouse v. Firemans Fund Insurance  Co.

that  an  employee is entitled to full reasonable attorneys  fees

for services performed with respect to issues on which the worker

prevails.62   In that case, the board found that  Bouse  was  not

entitled to 100 percent of his attorneys fees because he did  not

prevail  on  all  issues  and instead awarded  him  half  of  his

attorneys  fees.63   We  upheld the boards findings  because  the

claims  on which Bouse did not prevail were worth as much as  the

claims on which he prevailed.64

          Here,  the  board  weighed  the  nature,  length,   and

complexity  of Coes services with the number of issues  on  which

Williams actually prevailed as required under the law.65  Williams

prevailed  on  his claims for medical benefits for  treatment  at

Central  Peninsula  Hospital on November 21,  1997  with  related

costs  and  reimbursement for additional  medical  transportation

costs.    Williams  also  obtained  interest  on  these   claims.

However, Williams did not prevail on his claims for PTD benefits,

a   compensation  rate  adjustment,  the  setting  aside  of  the

compromise  and  release,  additional penalties,  and  unfair  or

          frivolous controversions.  Also, the board found that it did not

have  jurisdiction to award civil penalties or criminal sanctions

against  Knik.   The  board  did not abuse  its  discretion  when

awarding  Williams  one-half  of  Coes  actual  attorneys   fees.

Therefore,  we  uphold the award of one-half  of  Coes  attorneys


     H.   The  Superior Court Did Not Err in Finding that a Panel
          Members Alleged Misconduct Did Not Violate Williamss Due Process
A.              Williams claims that his due process rights  were

violated  when his case was decided by a panel that  contained  a

member  he claims fell asleep during the hearing.  Williams  also

claims  that  sleeping  during the  hearing  by  a  panel  member

violated  his due process rights.  Williams offers the  videotape

of  the  hearing  as proof that a panel member slept  during  the

hearing.    Williams  never  specifically  named  nor   otherwise

identified  any  particular panel member as the one  that  slept.

Our  review of the videotape failed to reveal any evidence  of  a

sleeping  panel member.  Without more evidence or,  at  the  very

least,  disclosure of the identity of the alleged sleeping  board

member,  Williams has no claim for relief.  Moreover, failure  to

make  the  appropriate objection during the  hearing  waives  the

right to appeal procedural errors.66  Therefore, by not producing

sufficient  evidence and by failing to raise  the  issue  of  the

allegedly  sleeping  board member at the  hearing,  Williams  has

waived the issue.

     I.   The  Superior Court Did Not Err in Affirming the Boards
          Decision To Deny Williamss Petition for Reconsideration.
          Williams  claims  that  the  board  did  not  give  due

consideration to any of the evidence presented by Williams in his

petition for reconsideration.  Under 8 AAC 45.150, the board  has

discretion to decide whether it will examine previously submitted

evidence  but  must give due consideration to  any  petition  for

reconsideration.67   The board found that the  record  was  fully

developed and that the case was fully and capably argued by  both

          parties.  The board exercised its discretionary authority to

grant  a  limited  review in order to view the videotape  of  the

alleged   sleeping  panel  member.   After  each   panel   member

independently viewed the videotape the board found that all three

panel  members were actively following the testimony,  discussion

and argument of the hearing.  The board gave due consideration to

Williamss  petition for reconsideration and  the  denial  of  the

petition was not an abuse of discretion.


          The  decision  of the superior court was  not  a  final
judgment because the superior court remanded the issue of  Joness
fees  to  the board for further proceedings.  However,  we  treat
this appeal as a petition for review under Appellate Rule 402 and
resolve all issues presented in the case.  We AFFIRM the superior
court  in all respects save one:  We REVERSE its ruling that  the
board abused its discretion by excluding the two affidavits filed
late by Jones and hold that the board did not err in refusing  to
consider late affidavits under the pre-hearing order.   On all of
the other issues raised in this appeal, we AFFIRM the decision of
the superior court.
     1     For  the  purpose  of clarity, the  employer  and  the
insurance company will collectively be referred to as Knik.

     2     A  patellectomy is the excision, or  removal,  of  the
patella,  commonly referred to as the kneecap.  Stedmans  Medical
Dictionary 1149 (25th ed. 1990).

     3     Iatrogenic narcotic dependency is narcotic  dependency
resulting from the use of prescribed drugs.

     4     Global  assessment of functioning measures a  patients
psychological,   social,  and  occupational  functioning   on   a
hypothetical   continuum  of  mental  health-illness.    American
Psychiatric  Association, Diagnostic and  Statistical  Manual  of
Mental Disorders 34 (4th ed. Text revisions 2000).

     5     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).

     6    Tesoro Alaska Petroleum Co., 746 P.2d at 903.

     7    Id.

     8    Id.

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

     10    DeYonge, 1 P.3d at 94.

     11     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)).

     12     Cameron  v.  Beard, 864 P.2d 538, 545  (Alaska  1993)
(citing Schmidt v. Lashley, 627 P.2d 201, 204 n.7 (Alaska 1981)).

     13    Oaksmith v. Brusich, 774 P.2d 191, 195 (Alaska 1989).

     14    Id.

     15     Bouse  v. Firemans Fund Ins. Co., 932 P.2d  222,  241
(Alaska 1997).

     16    Id. (citing Bailey v. Litwin Corp., 780 P.2d 1007, 1011
(Alaska 1989)).

     17     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)).

     18    Zabek, 934 P.2d at 1296.

     19    See id.; see also Waldroup v. Lindman, 28 P.3d 293, 301
(Alaska  2001) (stating that we choose to treat it as if it  were
raised by a petition for review and review its merits to avoid  a
possible future appeal on this issue).

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

     21     8  Alaska Administrative Code (AAC) 45.065 states  in
relevant part:

          (c)  After a prehearing the board or designee
          will issue a summary of the actions taken  at
          the   prehearing,  the  amendments   to   the
          pleadings,  and the agreements  made  by  the
          parties or their representatives. The summary
          will  limit the issues for hearing  to  those
          that  are  in  dispute  at  the  end  of  the
          prehearing.  Unless  modified,  the   summary
          governs  the  issues and the  course  of  the
     22    Lajiness v. H.C. Price Constr. Co., 811 P.2d 1068, 1069
n.2 (Alaska 1991).

     23    AS 23.30.120 states in relevant part:
          (a) 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
     24     Meek  v. Unocal Corp., 914 P.2d 1276, 1279-80 (Alaska

     25    AS 23.30.122.

     26    The version of AS 23.30.220(a) in effect on the date of
Williamss injury  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.
     27    882 P.2d 922 (Alaska 1994).

     28    Id. at 929.

     29    Id. at 924.

     30    Id.

     31    Id. at 928.

     32    975 P.2d 684 (Alaska 1999).

     33    Id. at 685-87.

     34    Id. at 689.

     35    Id.

     36    Id.

     37    Id.

     38    AS 23.30.120(a)(1).

     39    Thompson, 975 P.2d at 689.

     40    AS 23.30.012.

     41    856 P.2d 1155 (Alaska 1993).

     42    Id. at 1159 (holding that AS 23.30.012 is an expression
of  legislative  intent  that  approved  agreements  may  not  be
modified because of mistakes of fact.).

     43    Id. at 1158.

     44     Blanas v. Brower Co., 938 P.2d 1056, 1060-62  (Alaska

     45     Barber  v.  Natl Bank of Alaska, 815  P.2d  857,  862
(Alaska  1991)  (listing requisite elements for  fraud  cause  of

     46     Cameron  v.  Beard, 864 P.2d 538, 545  (Alaska  1993)
(citing Schmidt v. Lashley, 627 P.2d 201, 204 n.7 (Alaska 1981)).

     47     See Martech Constr. Co., Inc. v. Ogden Envtl. Servs.,
Inc.,  852  P.2d  1146,  1152 (Alaska  1993)  (stating  that  the
agreement  indicates a complete washing of the hands between  the
parties  using  as  soap blatantly broad language  to  cover  all
possible causes of action and that although the [claim]  was  not
specifically discharged, neither was it specifically reserved  as
an independent claim.).

     48     The briefs do not make clear whether the controverted
penalties  and  interest  are  before  or  after  July  2,  1997.
Williams  is not entitled to any penalties or interest for  late-
paid  medical benefits prior to July 2, 1997, regardless  of  the
theory  argued,  because  these claims were  released  under  the
compromise and release.

     49     The  version of 8 AAC 45.082(d) in effect during  the
relevant time period states in relevant part:

          (d)  Medical bills for an employees treatment
          are  due and payable within 14 days after the
          date   the  employer  received  the   medical
          providers bill and a completed report on form
          07-6102. . . .
               (1)  a  medical bill or if  the  medical
          bill  is  not  paid in full  as  billed,  the
          employer shall tell the employee and  medical
          provider  in  writing  the  reasons  for  not
          paying  all  or  a part of the  bill  or  the
          reason  for delay in payment within  14  days
          after  receipt  of  the  bill  and  completed
          report on form 07-6102.
     50    AS 23.30.155 states in relevant part:
                  (b)   The   first   installment    of
          compensation  becomes due  on  the  14th  day
          after  the  employer  has  knowledge  of  the
          injury   or   death.   On   this   date   all
          compensation   then  due   shall   be   paid.
          Subsequent  compensation  shall  be  paid  in
          installments, every 14 days, except where the
          board determines that payment in installments
          should  be  made  monthly or  at  some  other
               . . . .
          (d)  .  .  . If the employer controverts  the
          right  to  compensation after  payments  have
          begun, the employer shall file with the board
          and   send  to  the  employee  a  notice   of
          controversion  within  seven  days  after  an
          installment  of compensation payable  without
          an award is due. . . .
                (e)  If any installment of compensation
          payable  without an award is not paid  within
          seven  days after it becomes due, as provided
          in  (b) of this section, there shall be added
          to  the unpaid installment an amount equal to
          25  percent  of  it.  This additional  amount
          shall  be  paid at the same time as,  and  in
          addition  to, the installment, unless  notice
          is  filed under (d) of this section or unless
          the  nonpayment is excused by the board after
          a  showing  by  the employer  that  owing  to
          conditions  over  which the employer  had  no
          control  the  installment could not  be  paid
          within the period prescribed for the payment.
     51    Childs v. Copper Valley Elec. Assn, 860 P.2d 1184, 1192
(Alaska 1993).

     52    Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d  896,  903 (Alaska 1987) (quoting Earth Resources  v.  State
Dept of Revenue, 665 P.2d 960, 964 (Alaska 1983)).

     53    Id.

     54    8 AAC 45.082(d).

     55    AS 23.30.155(e).

     56    AS 23.30.155.

     57     Harp  v. Arco Alaska, Inc., 831 P.2d 352, 358 (Alaska

     58     Id. (quoting Stafford v. Westchester Fire Ins. Co. of
New  York,  526  P.2d  37, 42 (Alaska 1974), overruled  on  other
grounds, Cooper v. Argonaut Ins. Companies, 556 P.2d 525  (Alaska

     59     Controversions occurring prior to July  2,  1997  are
covered by the compromise and release and, therefore, may not  be
raised in this appeal.

     60    AS 23.30.145(b) states:

                (b) If an employer fails to file timely
          notice   of  controversy  or  fails  to   pay
          compensation or medical and related  benefits
          within  15  days  after  it  becomes  due  or
          otherwise resists the payment of compensation
          or  medical and related benefits and  if  the
          claimant  has  employed an  attorney  in  the
          successful  prosecution  of  the  claim,  the
          board  shall  make an award to reimburse  the
          claimant  for  the costs in the  proceedings,
          including  a  reasonable attorney  fee.   The
          award  is in addition to the compensation  or
          medical and related benefits ordered.
          8 AAC 45.180 states in relevant part:

          (d)  The  board  will award a  fee  under  AS
          23.30.145(b) only to an attorney licensed  to
          practice  law  under  the  laws  of  this  or
          another state.
               . . . .
               (2)  In awarding a reasonable fee  under
          AS  23.30.145(b) the board will award  a  fee
          reasonably commensurate with the actual  work
          performed  and  will consider  the  attorneys
          affidavit filed under (1) of this subsection,
          the  nature,  length, and complexity  of  the
          services performed, the benefits resulting to
          the   compensation  beneficiaries  from   the
          services,   and   the  amount   of   benefits
     61    Childs v. Copper Valley Elec. Assn, 860 P.2d 1184, 1190
(Alaska 1993) (emphasis in original) (citing Cortay v. Silver Bay
Logging, 787 P.2d 103, 108 (Alaska 1990)).

     62     Bouse  v. Firemans Fund Ins. Co., 932 P.2d  222,  241
(Alaska 1997).

     63    See id. at 241.

     64    See id. at 241-42.

     65    AS 23.30.145(b) and 8 AAC 45.180(d)(2).

     66    See Williams v. Util. Equip., Inc., 837 P.2d 1112, 1116-
1117  (Alaska 1992) (stating that Williams waived his objections,
despite  the  protective order, when he  did  not  make  specific
objections  as  the testimony was presented); Far N.  Sanitation,
Inc.  v.  Alaska Pub. Utils. Commn, 825 P.2d 867, 873 n.8 (Alaska
1992)  (stating  that the conclusion that Far Norths  failure  to
object  or  raise  the point before the Alaska  Public  Utilities
Commission  constitutes waiver, because any  other  result  would
inevitably  create  an incentive for dilatory failure  to  assert
error);  Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979) (stating
that [w]here the error is not obvious or immediately apparent  we
should abstain from a full-scale examination of it, for the basic
rule  is  that failure to object to offered evidence  waives  the
objection);  McGee v. State, 614 P.2d 800, 803-04 &  n.6  (Alaska
1980) (holding that failure to make timely objection at trial  to
introduction  of evidence concerning a lineup, waived  defendants
argument  that  photographic  identification  procedure  was   so
impermissibly suggestive and unreliable as to violate due process
of law).

     67    8 AAC 45.150 states in relevant part:

          (f)  In  reviewing a petition for a rehearing
          or  modification  the  board  will  give  due
          consideration  to any argument  and  evidence
          presented in the petition.  The board, in its
          discretion,  will decide whether  to  examine
          previously submitted evidence.