Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Palmer v. Municipality of Anchorage (3/7/2003) sp-5670

Palmer v. Municipality of Anchorage (3/7/2003) sp-5670

     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,


GEOFFREY PALMER,              )
                              )    Supreme Court No. S-10062
             Appellant,            )
                              )    Superior Court No. 3AN-99-3431
     v.                       )
                              )    O P I N I O N
POLICE AND FIRE RETIREMENT    )    [No. 5670 - March 7, 2003]
BOARD,                        )
             Appellee.             )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Dan A. Hensley, Judge.

          Appearances:  Charles W. Coe, Law Offices  of
          Charles  W.  Coe, Anchorage,  for  Appellant.
          Constance  E. Livsey, and Rebecca  J.  Hiatt,
          Holmes,  Weddle  &  Barcott,  Anchorage,  for

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

          EASTAUGH, Justice.
          BRYNER,   Justice,  with  whom  FABE,   Chief
          Justice, joins, dissenting.


           The  Anchorage Police and Fire Retirement Board denied

Geoffrey  Palmer  occupational  disability  benefits  for   heart

disease  that worsened during his twelve-year tenure as a  police

officer for the Municipality of Anchorage.  Palmer appealed,  and

the superior court affirmed.  Because a board member's motion  to

award  Palmer benefits did not receive the requisite five  votes,

we  hold  that the board correctly rejected Palmer's claim,  even

though four board members - a majority of the seven deciding  his

case - voted for the motion.

           We  also  affirm the board's decision on  the  merits.

There  was  substantial  evidence that  Palmer's  disability  was

solely the result of his preexisting coronary artery disease, and

was  not aggravated by his 1990 work-related heart attack.  There

was also substantial evidence that work-related stress was not  a

substantial  factor  in  bringing about or  aggravating  Palmer's

heart  disease.  We therefore affirm the superior court  judgment

upholding the board's decision.


          A.   Palmer's Heart Disease

           Geoffrey  Palmer suffered a minor heart attack  during

the  course  of his employment as an Anchorage police officer  in

April  1990.  Palmer was diagnosed with coronary artery  disease,

or  atherosclerosis.   Dr.  Mohammed Sarwar  performed  a  double

coronary artery bypass about a week after Palmer's attack.

          Palmer returned to unrestricted duty with the Anchorage

Police Department. He experienced no symptoms of his disease  for

the next six years.

           In October 1996 a fellow police officer was killed  in

the  line  of duty while executing an arrest warrant.   The  next

day,  Palmer  experienced chest and arm  pains  and  had  trouble

breathing shortly after discussing the officer's death  with  his

wife.1  Palmer went to the emergency room and was diagnosed  with

a  possible  heart  attack.   Three  days  later  a  cardiologist

diagnosed  unstable  angina  and a possible  mild  heart  attack.

Tests  revealed  seventy  to one hundred  percent  occlusions  of

several arteries, including a seventy percent occlusion of one of

the two vein grafts used in the 1990 bypass surgery.

            Palmer  developed  recurring  angina  pectoris  after

release  from the hospital.  His treating physician,  Dr.  Thomas

Kramer, performed two coronary balloon angioplasties and placed a

stent in Palmer's mid-left anterior descending coronary artery in

November  1996.   Palmer  has not experienced  significant  chest

pains  since  these  procedures.  Palmer testified  at  his  1998

occupational  disability hearing that he had been on  leave  from

the police force since his 1996 hospital admission.

          B.    The  First  Board  Decision Denying  Occupational

          Disability Benefits

          Palmer filed an application for occupational disability

benefits  under  Plan III of the Anchorage Police and  Retirement

System  in  April  1997.   The Police and Fire  Retirement  Board

("PFRB" or the "board") denied his claim, and scheduled a hearing

to review this denial.  The only issue at the hearing was whether

Palmer's disability was work-related.

           Palmer  presented two theories under which  he  argued

that  he  was entitled to benefits.  First, he introduced  expert

medical evidence that his 1990 heart attack and subsequent bypass

operation were precipitated by work-related activities.  He  also

introduced  evidence  that  one of the  vein  grafts  had  become

severely  occluded by 1996, and that this occlusion occurred  for

reasons  unrelated to the progression of his underlying  coronary

artery   disease.    He  concluded  that  he  was   entitled   to

occupational   disability   benefits   because   this   occlusion

aggravated  or  contributed  to his  disability.   Alternatively,

Palmer argued that he suffered a great deal of stress on the  job

that aggravated or contributed to his underlying disease.

           Only  three of the seven participating members of  the

board  voted for a motion to award Palmer occupational disability

benefits.   Accordingly, the board treated the motion  as  denied

under   former   Anchorage  Municipal  Code   Regulation   (AMCR)

3.85.010(B).2  The board relied extensively on the  testimony  of

Dr. William Breall, the independent medical examiner hired by the

board  for this case, in concluding that Palmer's disability  was

not work-related under either of his two theories.

           On  appeal by Palmer, the superior court held that the

board  "erred  in adopting Dr. Breall's opinions as `substantial'

evidence  and  erred  in  failing  to  resolve  inconclusive  and

doubtful  medical  testimony in favor of Palmer."   The  superior

court remanded the case to the board for "reconsideration of  the

record,  applying  the proper legal standard,"  and  ordered  the

board to "reconsider its reliance on Dr. Breall's opinions."

          C.    The  Second  Board Decision Denying  Occupational

          Disability Benefits

            Seven  board  members,  including  two  who  did  not

participate in the original decision, reconsidered the record and

voted  four  to  three  to  award Palmer occupational  disability

benefits.   But  because  the motion to award  benefits  did  not

receive five votes, the motion failed under AMCR 3.85.075(B).3

            Accordingly,   the  board  issued  a  second   ruling

explaining its denial of Palmer's claim.  The board relied on the

testimony and reports of Dr. Breall and Dr. Werner Samson as well

as "other objective medical evidence" in the record.4

           Palmer  appealed, and the superior court affirmed  the

board's second decision.  The court found that the board properly

reconsidered its reliance on Dr. Breall's testimony in accordance

with the first superior court order, and that the board relied on

the  testimony  of Dr. Samson and objective medical  evidence  as

well  as  Dr.  Breall's  testimony in reaching  its  decision  on

remand.   The court concluded that "substantial evidence  in  the

record  supports  the  Board's denial of occupational  disability


           Palmer appeals the superior court's ruling, contesting

the   board's  procedures  as  well  as  its  factual  and  legal



            This   case   first  requires  us  to  consider   the

constitutionality  of an administrative regulation.   We  conduct

this  review using our independent judgment,5 adopting "the  rule

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

policy."6   We  review  an  agency's interpretation  of  its  own

regulations  using  our independent judgment,  so  long  as  that

interpretation does not implicate the agency's area of  expertise

or  questions  of  fundamental policy committed to  the  agency's

discretion.7        Even under the independent judgment  standard

we  "[give]  some weight to what the agency has done,  especially

where the agency interpretation is longstanding."  Usibelli  Coal

Mine,  Inc. v. State, Dep't of Natural Res., 921 P.2d 1134, 1142-

43  (Alaska  1996).  Further, when an agency interprets  its  own

regulation, as in this case, we presume that "the agency is  best

able  to  discern  its intent in promulgating the  regulation  at

issue."  Rose v. Commercial Fisheries Entry Comm'n, 647 P.2d 154,

161 (Alaska 1982) (citing Kenneth Culp Davis & Richard J. Pierce,

Jr.,  Administrative  Law  Treatise   7.22,  at  105-08  (2d  ed.

1979)).        Next, we must consider a merit appeal of an agency

adjudication.   "In considering an administrative appeal  from  a

decision   issued   by  the  superior  court  [sitting]   as   an

intermediate  court  of  appeal, we review  the  agency's  action

directly."8   We  review questions of law  not  involving  agency

expertise  using  our  independent  judgment.9   We  review   the

agency's  factual  determinations under the substantial  evidence

standard.10   Whether the quantum of evidence  is  sufficient  to

constitute   "substantial  evidence"  supporting   the   agency's

conclusion to deny benefits is a legal question to which we apply

our independent judgment.11


          A.   The Board's Voting Procedures Were Neither Invalid
          Nor  Unconstitutional. " \l 2       Palmer argues  that
          several  flaws in the PFRB proceedings conflicted  with
          either  his  constitutional rights  or  municipal  laws
governing the   PFRB's   adjudication   of   his   claim.    Only
          two of these challenges deserve extended comment.  " \l
          3         1.   AMCR 3.85.075(B)'s five-vote requirement
          did  not  violate Palmer's right to a fair adjudication
          of his claim.
           First, Palmer argues that AMCR 3.85.075(B)'s five-vote

requirement  infringed  on  his  due  process  right  to  a  fair

adjudication  of  his claim because it enabled his  claim  to  be

denied  by  a minority of the participating board members.12   We

reject   this  contention  because  the  regulation  serves   the

legitimate purpose of ensuring that only a majority of  the  full

board  and a coalition of the former board's management-side  and

labor-side appointees can decide to change the status quo.

           Former chapter 3.85 of the Anchorage Municipal  Code13

established an eight-member Police and Fire Retirement  Board  to

preside  over disability claims brought by members of the  Police

and Fire Retirement Plan,14 and authorized the board to promulgate

regulations  consistent with its mandate.15  Anchorage  Municipal

Code  Regulation 3.85.075(B) provides that "[i]n  order  for  any

motion  to  be passed by the board, it must be supported  by  not

less than five votes of board members."  As a matter of practice,

the  board  makes  all  of  its  benefits  decisions  by  motion.

Following  a hearing, a member makes a motion to award  benefits.

Benefits  are  awarded if five or more members vote  in  support;

otherwise,   benefits  are  denied.   Anchorage  Municipal   Code

Regulation  3.85.075(A) provides that five members of  the  board

constitute  a  quorum, and that absent a quorum the board  "shall

not transact any business other than adjournment of [a] meeting."

            Palmer   argues   that  because  of   the   five-vote

requirement,  the  burden  of persuasion  fluctuates  arbitrarily

depending on the number of board members who actually participate

in  a given case.  If eight participate, then the claimant simply

has  to  persuade a majority that he is entitled to  occupational

disability benefits.  But if only five participate, the  claimant

must  persuade  every  participating board member.   In  Palmer's

case, four of the seven participating members voted to grant  him

occupational  disability benefits, but his claim was  nonetheless

denied because of the five-vote requirement.  Palmer insists this

procedural  rule  violated  his  due  process  right  to  a  fair

adjudication  of his claim, and asks us to hold AMCR  3.85.075(B)

unconstitutional.  Alternatively, he impliedly asks that we allow

him to re-argue his case before a full board.

           The board responds that because Palmer received notice

and  an  opportunity to be heard, he cannot claim the benefit  of

any  further procedural protections.16  But this court has  never

held  that  such minimal protections are categorically sufficient

to  insulate  an administrative adjudication against due  process

challenges.  Rather, we conduct a full review to ensure that  the

agency's  adjudicative  procedures are "consistent  with  a  fair


           To  determine  whether specific procedures  should  be

added   or   substituted,  we  apply  the  three-part  analytical

framework announced by the United States Supreme Court in Mathews

v.  Eldridge.18   First,  we  look to  the  private  interest  in

question;  second, we assess the risk of an erroneous deprivation

of  that  interest posed by current procedures and  the  probable

value  of  additional  or substitute procedural  safeguards;  and

finally,  we  examine  the government's interest,  including  the

function involved and the fiscal and administrative burdens  that

the additional or substitute procedural requirement would entail.19

           There  is  no  dispute  that  occupational  disability

payments  constitute  a  substantial benefit.   An  officer  with

Palmer's qualifications would have received fifty percent of  his

final average compensation if entitled to occupational disability

benefits, as opposed to thirty percent if entitled only  to  non-

occupational  disability  benefits.20  Accordingly,  the  private

interest at stake is significant.

            Palmer  is  arguably  correct  that  his  chances  of

prevailing on his claim are lowered by each missing board member,

since  absent board members are effectively counted as nay  votes

when  the board votes on a motion to award benefits.  One of  the

chief  purposes  of  the due process clause is  to  "ensure  that

individuals  who  have  property  rights  are  not  subjected  to

arbitrary  governmental  deprivation  of  those  rights."21   The

board's  procedures expose occupational disability  claimants  to

the risk of arbitrary deprivation.

           Further, the solutions to this problem would be simple

and  effective.  Claimants can be given the right to require  the

full  board  to  hear  their cases. Alternatively,  when  members

cannot  participate  in a particular case  due  to  conflicts  of

interest  or  other compelling reasons, the five-vote requirement

could be suspended, and motions to award benefits could be passed

by a simple majority of participating board members.22

           But  we  must  also  consider the government  interest

affected  by  the proposed corrective procedures.  At  all  times

relevant  to  this case, the board was comprised of four  members

appointed  by the mayor and four members chosen by the retirement

plan  participants.23  This corresponds to an even split  between

management-side  and  labor-side board  members.   The  five-vote

minimum ensured that any board member could not change the status

quo  without  persuading at least one member  whose  professional

background differed.24  By requiring a cross-section of the board

to  approve  any change, the five-vote minimum may have  had  the

effect  of  encouraging a spirit of cooperation  and  compromise.

Allowing  fewer  than  five  members  to  award  benefits   might

frustrate this legitimate goal.25

           Likewise,  a  rule allowing a claimant to  postpone  a

hearing  if  less than a full board was present would  constitute

substantial  judicial interference with the  board's  ability  to

conduct  its  business.   While this approach  would  leave  AMCR

3.85.075(B)  intact,  it would effectively substitute  an  eight-

member  quorum  rule  for AMCR 3.85.075(B)'s  five-member  quorum

rule.  The board has a significant interest in being able to  set

its  own calendar and hear claims in an orderly manner regardless

of whether all of its members participate in a given claim.26

          At least one court has rejected a due process challenge

in  a  very similar procedural context.  In Stanson v. San  Diego

Coast  Reg'l  Comm'n,  a  property owner  was  denied  a  coastal

development  permit  despite the fact  that  a  majority  of  the

participating regional commissioners voted to grant the permit.27

Only eight of eleven regional commissioners attended his hearing;

because  only  five of these eight voted to grant a  permit,  the

developer  did not obtain the support of a majority of the  total

appointed  membership of the regional commission as  required  by

the  relevant  statute.28   The court noted  that  the  developer

arguably bore a "more onerous burden" because he did not  have  a

chance to persuade the missing regional commissioners.29  But the

court  concluded  that this did not violate due process,  because

the  process ensured that "the issuance of a permit will be based

on  the  judgment  of a broader cross-section of the  commission"

than would be the case if permits could be granted by less than a

majority of the commission, and the government had a "substantial

interest  in  protecting  the integrity  of  the  decision-making

process."30   The  same  reasoning  applies  here.   Accordingly,

Palmer's challenge to AMCR 3.85.075(B) fails.

             Furthermore,   full-body   voting   provisions   and

supermajority   requirements   are   both   common   and   useful

administrative tools.  The common law rule that a  majority  vote

requires a majority of those voting, in the presence of a quorum,

excluding   blanks   and  abstentions,  is   merely   a   default

presumption.31   It  can be modified and often  is.32   Full-body

provisions  and  supermajority requirements help ensure  a  broad

consensus is reached for important governmental action.  For this

reason,  many  states recognize full-body voting  provisions  for

municipal entities in abrogation of the common law presumption.33

Indeed,  the  Alaska  Constitution includes provisions  requiring

enhanced majorities among defined voting bodies.34  In this case,

the  legislature clearly delegated responsibility  for  designing

rules  of  order  and  procedure to  the  board,  and  the  board

permissibly  adopted voting procedures designed to guard  against

the  expenditure of system funds on the vote of a minority of the

full  membership.   Similar rules are common  among  governmental

entities, and provide a useful procedural safeguard.

           The  dissent, having analogized the PFRB  to  a  jury,

would hold that the PFRB's former procedure violated due process.

But  the  PFRB is not analogous to a jury.  Unlike  a  jury,  its

constituent  representative makeup  was  specified.   And  as  an

administrative agency, it differs fundamentally from a jury:   it

has  repeat business and collective expertise; its members  bring

individual expertise and different professional perspectives that

would  probably preclude them from sitting as jurors  if  a  jury

were  somehow trying Palmer's claim; and it even has some policy-

setting  capability entitling it to deference when  it  uses  its

expertise to interpret its enabling provisions.

           The  dissent  asserts that the "full-body"  cases  the

court  cites above are distinguishable because it claims they  do

not involve tribunals adjudicating rights.  But the dissent would

hold  that the municipality's procedure violates due process even

though  the dissent cites no case holding that applying  a  full-

body  voting  requirement to a tribunal like  the  PFRB  violates

procedural due process.

           In short, we are unconvinced that requiring Palmer  to

persuade five of the seven sitting board members denied  him  due


                     2.    The board's practice of deciding cases
               by  motions  framed  to require  the  claimant  to
               obtain  votes  of a majority of the board  is  not
               inconsistent     with    the    presumption     of
           Palmer  also  argues  that  the  board's  practice  of

requiring  a  majority of the board to vote in favor of  awarding

benefits  is  inconsistent  with the  rebuttable  presumption  of

compensability  applicable to his occupational disability  claim.

Palmer argues that benefits should be awarded unless five members

support a motion to deny them.  Because only three members of the

board  voted to deny benefits in the board's second vote  on  his

claim, Palmer argues that he should prevail.

           The  board argues that framing the motion for benefits

in a way that requires the claimant to establish his claim is not

inconsistent with the presumption of compensability.   The  board

reasons that regardless of the legislature's decision "to lighten

[Palmer's]  burden [of production] via a rebuttable presumption,"

Palmer is not entitled to occupational disability benefits  until

a five-member majority of the board decides that he is.

           The board is correct.  Palmer overstates the effect of

the presumption of compensability.  The presumption simply shifts

the  burden of production from the claimant to the employer  with

respect  to  certain  types of favored claims.   The  presumption

bears no relationship to any aspect of the burden of persuasion -

in  this  case,  how many board members Palmer must  persuade  in

order  to  prevail.  The board's practice of framing  motions  to

award  benefits  rather  than to deny them  does  not  contradict

former AMC 3.85.230(C)(2)'s rebuttable presumption.

                    3.   Palmer's remaining procedural challenges

               are meritless.

           We  also  reject  Palmer's  remaining  contentions  of

procedural  error.  First, the participation  by  two  new  board

members on remand did not violate Palmer's due process rights  or

the  board's  regulations, despite Palmer's strained argument  to

the  contrary.  Palmer overstates the effect of AMCR 3.85.075(C),

which  provides that board members "who miss part  of  a  hearing

shall  not  participate in the adjudication" unless  the  parties

agree  to the members' participation and the members review  "the

recorded  testimony  taken  in  their  absence."   Neither   this

provision  nor  any other suggests that only those board  members

who  originally decided Palmer's claim may participate on remand.

The  board  correctly  reasons that such a requirement  would  be

impractical given that the board's composition changes over time.

The  two board members who participated for the first time in the

reconsideration  of Palmer's claim on remand attested  that  they

"had  reviewed the record and would be able to make  an  informed

decision on [Palmer's] claim."  Neither the regulations  nor  the

due  process  provisions of the state and  federal  constitutions

require anything further.

           Finally,  Palmer  alleges that the board's  option  to

frame  motions as either motions to award benefits or motions  to

deny them constitutes an equal protection violation, because  the

board  can  vary  the  burden  of  similarly  situated  claimants

depending  on  how the motion is framed.35  But Palmer  does  not

allege  that the board has ever made a motion to deny as  opposed

to award benefits.  There is no ground on which to begin an equal

protection analysis in the absence of some allegation of  unequal

treatment.       B.    The  Board  Correctly  Refused   To   Give

Preclusive  Effect  to  the Alaska Workers' Compensation  Board's

Ruling  that  Palmer's  Disability  Was  Work-Related.  "  \l   2

The PFRB originally determined that Palmer's injury was not work-

related.  While the first PFRB decision was pending on appeal  to

the superior court, the Alaska Workers' Compensation Board (AWCB)

concluded  that  Palmer's disability was work-related  under  the

Alaska  Workers' Compensation Act.  The superior  court  reversed

and  remanded the PFRB's first decision, holding that the board's

reliance  on Dr. Breall's opinion was misplaced.  The board  held

on  remand that the AWCB's opinion was not entitled to preclusive

effect,36 and again determined that Palmer's injury was not work-

related.   In affirming the board's second decision, the superior

court  held  that  the  AWCB's  contrary  determination  had   no

preclusive  effect  because the PFRB's initial decision  remained

the  first  final judgment despite the intervening  reversal  and

remand by the first superior court order.

           The  board  reiterates this reasoning on  appeal,  and

further contends that collateral estoppel is inapplicable because

the  real parties in interest in the two proceedings were neither

identical nor in privity with each other.  Because we agree  with

the  latter  argument, we need not address the  superior  court's

reasoning  regarding the final judgment issue.37   Following  the

reasoning in Holmberg v. State, Division of Risk Management,38 we

conclude  that the defendants before the AWCB and the  PFRB  were

not in privity.

            In  Holmberg,  we  held  that  the  Public  Employees

Retirement Board's (PERB's) factual determination that  a  former

employee  was  physically unable to perform her  duties  did  not

preclude  relitigation of this issue before the AWCB because  the

real  parties in interest were not in privity.39  The real  party

before  the  AWCB was the state as an employer,  while  the  real

party  before  the  PERB was the state as  administrator  of  the

Public Employees Retirement System (PERS).40  The state represents

the interests of the PERS in proceedings before the PERB, and  as

the  court explained, PERS's interests are not identical  to  the

state's interests.41  Specifically, PERS awards are paid from the

trust  fund  to  which all PERS members and employer-participants

contribute,  whereas any amount awarded by the  AWCB  would  come

directly  from the state treasury.42  The state is only nominally

represented  in  the  PERB proceeding to the  extent  it  has  an

interest in the trust fund.43  Accordingly, we held that the real

parties in the separate proceedings were not sufficiently related

to assure that the state's interests were adequately protected in

the PERB proceeding.44

            Holmberg's   reasoning  applies  here.    First,   in

proceedings  before  the board, the staff  of  the  PFRB  or  its

appointed  attorney represents the interests  of  the  retirement

system,  not  the  interests of the municipality  as  employer.45

Likewise,  occupational disability benefits  are  paid  from  the

retirement  system's  trust  fund, not  from  the  municipality's

general coffers.46  Finally, the interests of all members of  the

Police  and  Fire  Retirement System other than the  municipality

were not represented at all in the AWCB proceedings.47

          Therefore, the real parties in interest before the AWCB

and the PFRB were not in privity, and the AWCB determination that

Palmer's  disability  was work-related did  not  preclude  PFRB's

reconsideration of that issue.

          C.     Substantial   Evidence  Supports   the   Board's
          Conclusions that the Presumption of Compensability  Was
          Successfully Rebutted and that Palmer Failed  To  Prove
          by  a Preponderance of the Evidence that His Injury Was
          Work-Related. " \l 2          As a member of  Plan  III
          of the Police and Fire Retirement System, Palmer enjoys
          a  rebuttable  presumption that his heart condition  is
          work-related.48   The PFRB recognized that  the  Alaska
          Workers'  Compensation Act (AWCA) contained  a  similar
          rebuttable  presumption,49 and  formally  adopted  this
          court's   interpretation  of  the   AWCA's   rebuttable
          presumption in Resolution 85-1.
                Accordingly,  a three-step analysis  governs  our
          review  of  the board's denial of Palmer's occupational
          disability  benefits  claim.  The first  step  requires
          Palmer  to  offer "some evidence" that  his  disability
          claim  arose out of his employment.50  The board  found
          that  Palmer met this test with respect to both of  his
          theories that his disability was work-related, and  the
          board does not challenge these findings on appeal.51
               The second step requires us to examine whether the
          board  correctly  determined that substantial  evidence
          was    presented    rebutting   the   presumption    of
          compensability  with  respect  to  each   of   Palmer's
          theories.52   Because the presumption shifts  only  the
          burden  of production and not the burden of persuasion,
          we review any evidence tending to rebut the presumption
          in  isolation, without reweighing the rebuttal evidence
          against the evidence tending to establish causation.53
                Finally,  the third step requires  us  to  review
          whether   substantial  evidence  supports  the  board's
          decision  that Palmer failed to prove his  claim  by  a
          preponderance  of  the evidence  under  either  of  his
          proposed theories.54  As with the second step, we do not
          reweigh   the  evidence  or  choose  between  competing
                 Palmer   contends  that  the  board's   findings
          regarding  the  second and third steps were  erroneous,
          and   that  the  board  failed  to  apply  the  correct
          "substantial factor" test in both steps.   But  all  of
          the  board's  findings  were supported  by  substantial
          testimonial  and  objective medical evidence,  and  the
          board  explicitly  applied the  proper  legal  test  in
          reaching    its   conclusions.    Therefore,   Palmer's
          challenge on the merits fails.
                      1.    The  board  properly  relied  on  Dr.
               Breall's  testimony  in  conjunction  with   other
               objective evidence and expert testimony.
           The board relied extensively on Dr. Breall's testimony

to   determine   that  the  presumption  of  compensability   was

successfully  rebutted  and  that  Palmer  failed  to  prove  his

disability  was substantially work-related.  Palmer  argues  that

the  superior court erred by accepting Dr. Breall's  opinions  as

substantial evidence supporting the board's conclusions.

                                a.     Dr.   Breall's   testimony
                    supported a conclusion the disability was not
           Dr.  Breall  was  hired by the  board  to  conduct  an

independent  review  of  Palmer's  medical  history,  offer   his

diagnosis,   and  address  whether  he  thought  "any  industrial

factors" might have been a "substantial factor" in bringing about

Palmer's  disability.   Dr. Breall interviewed  Palmer  over  the

telephone, reviewed his medical records, and issued a report.

          Dr. Breall concluded that Palmer's disability is solely

the   product   of   his   underlying   "severe   triple   vessel

atherosclerotic coronary artery occlusive disease."   Dr.  Breall

found  that  this  disease was the result of "a number  of  well-

recognized,  but  non-industrial, risk  factors."56   Dr.  Breall

concluded that "[a]ny disability which [Palmer] currently has  is

due to the progressive non-industrial atherosclerotic development

within the coronary arteries and within his bypass grafts."

           Dr. Breall found that Palmer's 1990 work-related heart

attack "resulted in negligible damage to the left ventricle," but

that the occlusions following the 1990 bypass surgery had nothing

to do with this attack.  He explained that an angiogram performed

just  after the 1990 attack revealed that Palmer's left ventricle

ejection fraction was within the normal range.  That is,  despite

the  minor  damage  caused to the left  ventricle  by  the  heart

attack,  Palmer "had no disability whatsoever[] with  respect  to

the  heart muscle itself.  Therefore, any and all disability that

he had, had to be because of impairing the blood flow through the

coronary  arteries."  Accordingly, Dr. Breall concluded that  the

1990  heart  attack  "played  no role  in  Mr.  Palmer's  current


           Dr.  Breall also concluded that "[i]n all likelihood,"

Palmer  did  not  suffer  a  second heart  attack  in  1996.   He

explained  that  Palmer's 1996 episode was  not  a  second  heart

attack  because  neither  of  the two  indicia  of  a  myocardial

infarction - changes in the electrocardiogram or elevated  levels

of  certain enzymes - was present.  Dr. Breall concluded that the

1996  event  was  unstable  angina or preinfarction  angina.   He

further   noted   that  treadmill  tests  taken  after   Palmer's

hospitalizations   in   1990   and  1996   revealed   significant

improvement  in  aerobic function since  the  1990  attack.   Dr.

Breall inferred from this data that neither the 1990 heart attack

nor the 1996 episode caused any lasting disability.

           Dr. Breall also found that job-related stress did  not

contribute  to  Palmer's disability.  Dr. Breall  testified  that

"Type  A"  behavior is the only emotional stress factor that  has

been  proven  to cause, aggravate, or accelerate coronary  artery

disease.57  Dr. Breall testified that while Palmer has "a  severe

degree of [T]ype A behavior[,]. . . . this has absolutely nothing

at  all to do with his job."58  Accordingly, Dr. Breall concluded

that  Palmer's  Type  A,  or coronary-prone,  behavior  was  just

another  nonindustrial risk factor that may have  contributed  to

the development of Palmer's disease and resulting disability.59

           Dr.  Breall was asked on cross-examination  about  his

failure  to  perform a physical exam.  Dr. Breall testified  that

his  telephone interview and review of Palmer's extensive medical

records  were  sufficient  for  purposes  of  evaluating  whether

Palmer's  injury was work-related.  Dr. Breall also  acknowledged

that   he  had  previously  published  an  opinion  that  doctors

conducting evaluations for litigation purposes should not rely on

examinations,  medical histories, or diagnostic testing  obtained

or performed by non-medical or technical medical personnel.

                              b.   The first superior court order
                    did  not  require  the board  to  ignore  Dr.
                    Breall's testimony.
           Palmer  argues  that the superior court  unequivocally

ordered the board to ignore Dr. Breall's report and testimony  on

remand,  but  the  court's  opinion  does  not  support  Palmer's


          The court first noted Palmer's concerns that unlike Dr.

Kramer, Dr. Breall never physically examined him and did not have

an ongoing professional relationship with him.  The court further

noted  that  Dr. Breall's testimony was potentially  inconsistent

with  his  prior published opinions.  The court found  "that  the

Board's  reliance on Dr. Breall's opinions with  respect  to  the

relationship  between the [effects] of Palmer's  coronary  artery

bypass  of  1990  and his present disability does not  constitute

`substantial evidence,' as required by law upon which  the  Board

can  properly rely in reaching its decision."  The import of this

finding  is  best  deciphered in light of the court's  subsequent

statement  that  "the Board must reconsider its reliance  on  Dr.

Breall's opinions applying the proper legal `substantial  factor'

test."   The latter statement resolves any doubts created by  the

former:  the  court  would  not have ordered  reconsideration  of

testimony it intended the board to ignore.

           The  board adopted the correct interpretation  of  the

first superior court order; namely, that it should reconsider Dr.

Breall's  testimony in light of Palmer's concerns, and  that  the

doctor's testimony and medical report was insufficient by  itself

to clear the "substantial evidence" hurdle.

                               c.   Substantial evidence supports
                    the  board's  conclusion  that  Dr.  Breall's
                    testimony was conclusive and consistent  with
                    objective  medical  data  and  other   expert
           Palmer next argues that Dr. Breall's testimony  cannot

support  the  board's conclusion because it conflicted  with  his

prior  published  opinions  and  the  testimony  of  Dr.  Kramer,

Palmer's  treating  physician.  The board acknowledged  our  rule

that  doubtful or inconclusive evidence must be resolved in favor

of the claimant.60  However, this rule is not triggered simply by

a  lack of unanimity among experts, which clearly exists in  this

case,  but  only  when  "the substance of a  particular  witness'

testimony is in doubt."61  The board correctly explained that Dr.

Breall's  testimony was conclusive and consistent with  both  his

earlier  published opinions and other evidence presented  to  the

board in this case.

            The   board  explained  that  Dr.  Breall's  opinions

expressed in the professional publications brought to the board's

attention by Palmer were not inconsistent with his opinions in or

preparation  for this case.  Specifically, the board  found  that

Dr.  Breall's  opinion  that  non-medical  personnel  should  not

perform   medical  examinations  for  litigation   purposes   was

completely consistent with the fact that in this case all of  the

records Dr. Breall relied on were produced by other doctors,  and

mostly  by  other cardiologists.  Likewise, the board found  that

Dr. Breall's conclusion that Palmer's work-related stress did not

aggravate  his  coronary artery disease was consistent  with  his

previously published opinions.

           Palmer  argues that even if Dr. Breall's testimony  is

conclusive  and internally consistent, the board was  obliged  to

ignore  it by our decision in Black v. Universal Services, Inc.62

We  held  in  Black that the medical testimony of a doctor  whose

examination  consisted solely of a twenty-minute  interview  with

the  claimant and a brief physical examination did not constitute

substantial  evidence, especially in light of the fact  that  the

doctor's  conclusions  were "contrary to those  of  the  numerous

physicians who treated her."63  Palmer argues that we should reach

the  same conclusion regarding Dr. Breall's testimony because  he

did  not physically examine Palmer and his testimony was contrary

to that of Dr. Kramer, Palmer's treating physician since 1996.

           Palmer's  reliance  on Black is  misplaced.   We  have

limited  our  holding  in that case by consistently  refusing  to

reverse  a  board's  decision "where  the  reviewing  physician's

statement  did  not  stand alone and was  consistent  with  other

evidence  presented."64  We have held that a physician's reliance

on medical records rather than a physical exam is not fatal where

the  testimony is consistent with other medical expert  testimony

and  objective  test  results.65   In  this  case,  Dr.  Breall's

testimony  is  a  reasonable interpretation of  Palmer's  medical

records  and objective medical data.66 Additionally, Dr. Breall's

opinion  is  shared  in  substantial  part  by  Dr.  Samson,  who

physically  examined  Palmer  in  1997  for  the  parallel   AWCB

proceeding and whose report was admitted as evidence in the  PFRB


           Dr. Samson interviewed Palmer and conducted a physical

examination, treadmill test, electrocardiogram, and chest  X-ray.

Dr. Samson concluded that Palmer's 1990 work-related heart attack

caused  no  lasting damage and that Palmer's disability  was  not

caused by this attack.68  Dr. Samson took "strong issue" with Dr.

Kramer's  opinion that the 1990 coronary bypass was  necessitated

by  the heart attack.  Dr. Samson also found that the 1990 bypass

had  "absolutely  nothing" to do with Palmer's  angina  and  1996

angioplasty.  Rather, Dr. Samson determined that Palmer's  angina

pectoris  was  the  result  of  his  underlying  coronary  artery

disease,  which he thought was "undoubtedly" caused by  the  same

nonindustrial  risk factors identified by Dr. Breall.   Like  Dr.

Breall,  Dr.  Samson found that Palmer did not  suffer  a  second

heart  attack in 1996.  Dr. Samson concluded that Palmer's angina

pectoris  and  angioplasty  "in  no  way  were  related  to   his


           Accordingly,  the board did not violate  the  superior

court's order or otherwise err by relying in part on Dr. Breall's


                      2.     The   board  applied   the   correct
               "substantial factor" test in both the  second  and
               third   steps   of   its   analysis.   "   \l    3
               Palmer  contends that the board failed to properly
               apply  Tolbert  v.  Alascom,  Inc.'s  "substantial
               factor" test in the second and third steps of  its
               analysis   -   i.e.,   its   determinations   that
               substantial   evidence  rebutted  the   applicable
               presumption  of  compensability  and  that  Palmer
               failed  to prove that his disease was work-related
               by  a  preponderance of the evidence.69   But  the
               board   explicitly  stated  that  it  would  award
               benefits  "where  the  work-related  injury  is  a
               substantial  factor  in the employee's  disability
               regardless  of  whether a non-work-related  injury
               could independently have caused [the] disability."
               This  is  precisely  the standard  we  adopted  in
               Tolbert  to  govern  cases in which  two  or  more
               causal  factors may operate in concert to  produce
               the disability.70  As discussed below, substantial
               evidence supports the board's decision in both the
               second and third steps of its analysis.
                      3.     Substantial  evidence  supports  the
               board's  findings regarding the second  and  third
               steps   of   the  analysis.  "   \l   3        The
               "substantial factor" test announced in Tolbert  is
               consistent  with our recognition  in  Grainger  v.
               Alaska Workers' Compensation Board that often  "no
               single factor can be isolated as the `cause' of  .
               . . arteriosclerosis."71  Grainger also recognized
               the  corollary  that "several risk  factors  often
               operate together to precipitate or accelerate  the
               development   of   [arteriosclerosis]."72    Thus,
               whether nonindustrial risk factors associated with
               Palmer's      lifestyle     and      physiological
               characteristics  were the original  cause  of  his
               coronary artery disease is not determinative.   He
               may    nonetheless   qualify   for    occupational
               disability  benefits  if  either  his  1990  work-
               related   heart  attack  or  work-related   stress
               substantially   combined  with,   aggravated,   or
               accelerated his disease.73
                    Given the evidence discussed in Part IV.C.1.,
               the  board's  findings  that  the  presumption  of
               compensability was rebutted with respect  to  each
               of  Palmer's theories were not erroneous.   As  to
               each of Palmer's theories, the board was presented
               with   an   alternative  explanation  of  Palmer's
               disability that excluded work-related factors as a
               substantial cause.74
                     Palmer's  first theory is that his  occluded
               vein  graft,  which was necessitated by  his  1990
work-related heart         attack,         aggravated          or
               contributed to his disability.  But Dr. Breall and
               Dr. Samson both concluded that Palmer's disability
               was  caused  solely  by  his  underlying  coronary
               artery  disease,  and  that Palmer's  work-related
               heart   attack  in  1990  did  not  aggravate   or
               contribute  to that disease.  Further, Dr.  Samson
               took "strong issue" with Dr. Kramer's opinion that
               the  1990  bypass  operation was  necessitated  by
               Palmer's heart attack.  The board could reasonably
               infer   that   Palmer's   bypass   operation   was
               necessitated  by  his  preexisting,  nonindustrial
               coronary artery disease, not his 1990 work-related
               heart   attack.   Following  this  view,   whether
               occlusion   of  one  of  the  1990   vein   grafts
               contributed to Palmer's disability is irrelevant -
               the  vein  grafts  were required  to  address  the
               underlying  disease,  not  the  negligible  damage
               caused  by  the  1990 work-related  heart  attack.
               Finally, both doctors agreed that the 1996 episode
               did  not  constitute  a  second  heart  attack  or
               contribute to Palmer's disability.  Thus,  whether
               the 1996 episode should be considered work-related
               is likewise irrelevant.75
                     Palmer's  second theory is that work-related
               stress  contributed  to his disability.   But  Dr.
               Breall  testified  that  Palmer's  work  did   not
               aggravate his predisposition toward coronary-prone
               or  Type  A behavior.76  Again, the fact that  Dr.
               Pecora  was  of  a different view is  unimportant.
               The  board could permissibly choose to credit  the
               testimony  of  a well-credentialed expert  in  the
               relationship between emotional stress and coronary
               artery  disease over that of Dr. Pecora, a  friend
               of Palmer's parents. Conversely, the board was not
               required  to  credit Palmer's testimony  that  his
               stress was largely work-induced.
                     Despite  Palmer's arguments to the contrary,
               our  opinion  in  Grainger  does  not  render  Dr.
               Breall's  testimony insufficient to rebut Palmer's
               work-related stress theory.  We held  in  Grainger
               that   the   AWCB   improperly   relied   on   the
               inconclusive testimony of the claimant's  treating
               physicians  in determining that the  employer  had
               rebutted  the presumption that job-related  stress
               was  a  factor in causing Grainger's disability.77
               As  explained  above in Part IV.C.1, Dr.  Breall's
               testimony   is  not  inconclusive.    Unlike   the
               physicians  in  Grainger,78 Dr. Breall  explicitly
               testified  that Palmer's work-related  stress  did
               not   aggravate  his  underlying  coronary  artery
               disease.  Accordingly,  we hold  that  substantial
evidence supports     the     board's    decision    that     the
               presumption of compensability was rebutted.
                     Based  on  all of this evidence, we  further
               hold   that  substantial  evidence  supports   the
               board's decision that Palmer failed to prove by  a
               preponderance of the evidence that his  disability
               was work related.79

           For  these  reasons,  we AFFIRM the  decision  of  the

superior  court  upholding the board's  second  decision  denying

Palmer's claim for occupational disability benefits.

BRYNER,   Justice,   with  whom  FABE,  Chief   Justice,   joins,


          I disagree with the opinion's due process analysis.  In

my  view  the opinion misapplies Mathews v. Eldridge's  balancing

test80  by  treating it as if it were a rational basis  analysis.

Without any meaningful attempt at balancing the competing private

and  governmental interests, and despite conceding the importance

of  Palmer's retirement benefits, the opinion summarily concludes

that  his  right to a rational and non-arbitrary  ruling  on  his

entitlement   to  these  benefits  must  yield  to   the   city's

conjectural interests in the PFRB's five-minimum-vote requirement

-  illusory interests that the city itself has not even  bothered

to  argue  and  that are incapable of withstanding even  rational

basis scrutiny.

            The  opinion  identifies  two  supposedly  legitimate

governmental  interests  that  a "full-body"  voting  requirement

might  further: (1) to "help ensure a broad consensus is  reached

for  important  governmental action;"81 and (2) to  encourage  "a

spirit  of  cooperation and compromise" among participating  PFRB

members.82   Upon  examination, however, neither interest  proves

legitimate when a full-body voting requirement applies to a panel

like the PFRB.

           A full-body voting provision can be eminently sensible

when  applied to political or administrative bodies charged  with

making,  planning, or implementing public policy on a  community-

wide basis for the good of the public as a whole.  As the opinion

correctly observes, when used by public bodies that make  policy-

level  decisions  of  this  kind - bodies  like  legislatures  or

assemblies,  zoning  boards, and various planning  or  regulatory

commissions - a voting provision requiring broad-based  consensus

can serve a legitimate governmental interest by ensuring that the

body's  actions  do  what they are supposed to  do:  promote  the

general  public interest by reflecting community-wide perceptions

of sound policy.

           Yet  no  comparable governmental interest  is  readily

apparent  when  a  public board performs  judicial,  rather  than

political,  functions: when its actions are guided not  by  broad

notions of public policy meant to advance community interests  as

a   whole,  but   the  traditional  principles  of  case-specific

adjudication.  When a panel's core duties require it  to  resolve

individual  disputes  concerning  actionable  rights  and  duties

through  a  formal  process that entails an evidentiary  hearing,

factfinding, and a binding decision based on applicable law,  the

government  has  no  legitimate interest in  seeking  broad-based

political consensus.83

           Reflecting this disparity of interests, every  example

of  full-body voting discussed in the court's opinion involves  a

public  body  engaged in political decision- making  rather  than

case-specific  adjudication.   The  court  cites   no   authority

supporting  the  proposition  that  full-body  voting   has   any

legitimate place in administrative adjudication of legal claims.84

           Here,  the  PFRB's decision indisputably  involved  an

adjudicative  process, not a political process.   Palmer  is  not

asking  for  discretionary public benefits.  He  is  asserting  a

straightforward   contract  claim.   As   the   court's   opinion

acknowledges,  Palmer  had  a  significant  financial  stake   in

receiving  the benefits guaranteed by his retirement  plan.   His

interest in those benefits arose under the terms of his municipal

employment contract; it accrued over his many years of service as

a   city  police  officer;  and,  by  the  time  he  applied  for

retirement,  it  had ripened into a fully vested and  enforceable

property  right.   In asserting administrative jurisdiction  over

Palmer's  legal claim of right, the PFRB was obliged  to  resolve

the  claim by finding the facts of Palmer's case through  a  fair

and  impartial evidentiary hearing and by determining  the  legal

significance  of  those  facts  under  his  retirement  plan  and

applicable  law.  The board's duties were thus case-specific  and

guided  by  legal  principles that leave no legitimate  room  for

individual  board  members to assert partisan interests  or  make

general policy decisions for the broader public good.

           Given the narrow adjudicative role played by the PFRB,

the  city's  ostensible  interest in using  full-body  voting  to

ensure broad-based consensus rings false: in this distinctly non-

political  context, counting two absent board members  as  voting

against a claim is functionally indistinguishable from -  and  no

more  defensible  than - excusing two jurors from  attendance  at

trial  and  counting their absences as votes for  the  defendant.

The  analogy  between the PFRB and a jury is of  course  somewhat

inexact but is nonetheless apt.  Its accuracy can be confirmed by

comparing  the PFRB's voting rule to those used by  other  quasi-

judicial  tribunals in Alaska whose composition  and  duties  are

similar   to   the  PFRB's.   For  example,  Alaska's   Teachers'

Retirement   Board,  Public  Employees'  Retirement  Board,   and

Workers' Compensation Board all have memberships with a specified

makeup;  all  sit as multi-member tribunals, engage  in  repeated

adjudication,  and  develop collective expertise;  and  all  have

individual members who bring different expertise and professional

perspectives  to  the adjudicative process.85  Yet  their  voting

rules  reflect no legitimate need for full-body voting:  each  of

these  boards  decides each case it considers  by  majority  vote

based upon those members present and voting.86

           The  second purportedly legitimate government interest

in  full-body  voting - encouraging a "spirit of cooperation  and

compromise" on the PFRB - is simply a variation on the first  and

fares no better.  A "spirit of cooperation and compromise" may be

a  laudable  and important goal when dealing with a  governmental

body  like a coastal regulatory commission, which addresses broad

issues  of  policy and renders decisions based on its  individual

members'   subjective  perceptions  of  public  interests.    But

pressing  for compromise becomes far more questionable  when  the

pressure  is  applied  to  an  adjudicative  body  whose  primary

obligation  is  similar to a jury's - to decide individual  cases

fairly  and  impartially by hearing evidence, finding facts,  and

applying  settled  legal  rules  to  their  findings.   A  policy

encouraging  PFRB  members to "cooperate  and  compromise"  their

individually held views seems no more acceptable, and no worthier

of   judicial  deference,  than  would  be  a  comparable  policy

encouraging juries to compromise in judicial proceedings.

           As  applied  in this case, then, the five-minimum-vote

requirement  is fundamentally arbitrary and serves no  legitimate

purpose.  Moreover, as the court admits, the rule could be easily

be  cured;  in  fact it has already been discarded by  the  city.

Given   the  countervailing  importance  of  Palmer's  right   to

retirement  benefits,87 I would hold that Mathews  v.  Eldridge's

balancing test compels the conclusion that the PFRB's voting rule

violated Palmer's right to due process.

           I therefore dissent from the court's opinion affirming

the superior court's judgment.

1     Palmer  was  very upset both because he mistakenly  thought
that  executing  the warrant was his responsibility  and  because
Palmer  blamed  the police department for failing to  remedy  the
radio   communications  problems  that  Palmer  felt   may   have
contributed to the officer's death.
2     Former AMCR 3.85.010(B) provided that "[i]n order  for  any
motion  to  be passed by the board, it must be supported  by  not
less than five votes of the board members."
3     Former AMCR 3.85.010(B) was renumbered AMCR 3.85.075(B)  in
September  1998,  after  the board rendered  its  first  decision
earlier in 1998 but before it rendered its second decision in May
1999.  Anchorage Ordinance 98-216  1 (1998).
4     The  board  explained why it found Dr.  Breall's  testimony
credible,  consistent,  and  conclusive  in  general,  and   more
credible than contrary testimony submitted by Palmer's physicians
on  both  of  Palmer's  theories for  establishing  a  connection
between his illness and his employment.
5    Lauth v. State, 12 P.3d 181, 184 (Alaska 2000).
6    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
7     Balough v. Fairbanks North Star Borough, 995 P.2d 245,  254
(Alaska  2000); Nat'l Bank of Alaska v. State, Dep't of  Revenue,
642  P.2d 811, 815 (Alaska 1982).  In contrast, when the agency's
expertise  or  questions of fundamental policy are  involved,  we
review  the agency's interpretation of its own regulations  under
the  deferential "reasonable basis" standard.  Balough, 995  P.2d
at 254.

8      Snyder  v.  State,  Dep't of Pub. Safety,  Div.  of  Motor
Vehicles, 43 P.3d 157, 160 (Alaska 2002).
9    Tolbert v. Alascom, Inc., 973 P.2d 603, 607 (Alaska 1999).
10    Id.
11     Id. (citing Fireman's Fund Am. Ins. Co. v. Gomes, 544 P.2d
1013, 1015 & n.6 (Alaska 1976)).
12     The  parties  refer  to  former AMCR  3.85.010(B)  as  the
controlling  regulation throughout their  briefs.   However,  the
identical but renumbered AMCR 3.85.075(B) is the proper focus  of
this  litigation  because  that provision  governed  the  board's
proceedings on remand from the superior court.  See supra note 3.
13     Former  chapter 3.85 was repealed and reenacted  in  April
2000,  after  the board's second decision denying Palmer's  claim
for  occupational disability benefits.  Anchorage  Ordinance  No.
2000-65,   1,  3  (2000).   Accordingly,  the  current  chapter's
provisions are inapplicable in this case.  We note, however, that
the  current  code provisions are substantially  similar  in  all
aspects relevant to our decision.
14    Former AMC 3.85.010-.030.
15    Former AMC 3.85.040(G).
16     The  board  also  argues that Palmer  waived  all  of  his
constitutional  challenges by failing to raise them  below.   The
board   correctly  asserts  that  Palmer  failed  to  raise   his
constitutional  challenges before the  PFRB,  in  his  points  of
appeal  to the superior court or this court, or in his briefs  to
the  superior  court.  We do not generally reach  the  merits  of
arguments not presented to the agency whose decision is appealed.
Amerada  Hess  Pipeline Corp. v. Alaska Pub. Utils.  Comm'n,  711
P.2d  1170, 1181 n.22 (Alaska 1986).  But we will do  so  if  the
arguments do not depend on new facts and are sufficiently related
to  a  theory argued below such that they could have been gleaned
from  the  pleadings.  See, e.g., Baxley v. State, 958 P.2d  422,
430 (Alaska 1998) (citing Zeman v. Lufthansa German Airlines, 699
P.2d   1274,   1280  (Alaska  1985)).   Palmer's   constitutional
arguments  fit within this exception: they are simply  variations
of  procedural objections he has raised throughout the litigation
below, and do not depend on any new facts.
17     State, Dep't of Revenue, Child Support Enforcement Div. v.
Maxwell,  6  P.3d  733,  737 n.18 (Alaska 2000)  (quoting  In  re
Hanson, 532 P.2d 303, 305 (Alaska 1975)).
18     424 U.S. 319, 334-35 (1976); see also Whitesides v. State,
Dep't of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130,  1135
(Alaska 2001) (using the Mathews v. Eldridge framework to analyze
due process challenge to administrative procedure).
19    Mathews, 424 U.S. at 334-35.
20    Compare former AMC 3.85.230 with former AMC 3.85.240.
21     Davis  &  Pierce, Administrative Law  9.4, at 35  (3d  ed.
22    Claimants' odds of success would still fluctuate under this
rule depending on the number of participating board members.
23    Former AMC 3.85.030(B)-(C).
24     Palmer actually made a similar argument in support of  the
five-vote requirement in his second appeal to the superior court.
Thus,  his claim before this court that the five-vote requirement
"makes no sense" is disingenuous.
25     The  current  board is comprised of nine members  -  three
members appointed by the mayor, and three each of police and fire
retirement   plan   members  elected  by  the  membership.    AMC
3.85.020(B).    Disability  benefits   determinations   are   now
delegated  to  a standing disability committee comprised  of  one
police  trustee,  one  fire trustee, and two municipal  trustees.
AMC  3.85.080(A).  Three of these trustees constitute  a  quorum,
and  three  concurring votes are required for a decision  by  the
committee.   AMC 3.85.080(C).  Thus, the reasoning in  this  case
would apply to the current disability committee.  Requiring three
votes   means  that  a  claimant  must  persuade  at  least   one
municipality trustee to grant benefits.  See AMC 3.85.080(C).
26      Palmer's solution would not even necessarily  afford  his
desired relief.  For example, a claimant surely could not require
the participation of a board member who initially recused herself
due to a conflict of interest.
27    161 Cal. Rptr. 392, 395-96 (Cal. App. 1980).
28    Id. (interpreting Cal. Pub. Res. Code  30315 (West 1980)).
29    Id. at 397.
30    Id.
31     See, e.g., Henry M. Robert, Robert's Rules of Order  Newly
Revised   43  (Sarah Corbin Roberts et al. eds., 9th  ed.  1990);
Scheipe   v.   Orlando,   739  A.2d  475,   476-77   (Pa.   1999)
(acknowledging  common  law presumption and  state  legislature's
right  to modify common law with respect to municipal body voting
32    Robert, supra note 31.
33     City of Haven v. Gregg, 766 P.2d 143, 145-47 (Kan.  1988);
Braddy v. Zych, 702 S.W.2d 491 (Mo. App. 1986) (holding that "all
the  members" referred to full authorized membership of board  of
aldermen rather than actual membership at time vote was taken and
declining to enforce common law rule regarding majority  voting);
Mountain  Hill, LLC v. Middleton Township, 801 A.2d  412,  416-18
(N.J. App. 2002); Scheipe, 739 A.2d at 476-77.
34    See, e.g., Alaska Const. art. IV,  8 (seven-member judicial
council constitutionally sanctioned to act by concurrence of four
or  more members).  See also Alaska Const. art. II,  12, 14,  16,
20;  and art. IV,  15 (full-body accounting and enhanced majority
voting procedures constitutionally required to effectuate certain
legislative actions).
35    Alaska's equal protection clause mandates equal treatment of
those  similarly situated.  E.g., State, Dep't of Health  &  Soc.
Servs.  v. Planned Parenthood of Alaska, Inc., 28 P.3d  904,  909
(Alaska 2001).
36     The PFRB held that the AWCB determination was not entitled
to   collateral  estoppel  effect  because  the  superior   court
"directed  [the board] to reconsider only the evidence  presented
to us - not the evidence presented to another tribunal."
37     A  judgment only has collateral estoppel effect  if  three
requirements  are met: the party to be precluded was  either  the
party or in privity with the party in the first action; the issue
to be precluded is identical to that decided in the first action;
and  the  issue  in  the first action was  resolved  by  a  final
judgment  on the merits.  Holmberg v. State, Div. of Risk  Mgmt.,
796 P.2d 823, 827 (Alaska 1990).
38    796 P.2d 823, 827 (Alaska 1990).
39    Id. at 827-29.
40    Id. at 828-29.
41    Id. at 828.
42    Id.
43    Id. at 829.
44    Id.
45    AMCR 3.85.040(B).  We refer to Palmer's adverse party as the
"board"  throughout  this case simply as convenient  shorthand  -
Palmer's  actual adverse party before the board and on appeal  is
the Police and Fire Retirement System.  See AMCR 3.85.040(A)-(B).
46    See AMC 3.85.090-105.
47     See  Holmberg,  796  P.2d at 829 (noting  same  difference
between AWCB and PERB proceedings).
48     Former  AMC 3.85.230(C)(2) provided, "[h]eart,  lung,  and
respiratory system illnesses shall be rebuttably presumed by  the
board to be occupational disabilities for a member of Plan III."
49    AS 23.30.120(a)(1).
50    Tolbert v. Alascom, Inc., 973 P.2d 603, 610 (Alaska 1999).
51     As  noted  above  in Part II.B., Palmer  argues  that  his
disability was work-related because his occluded vein  graft  and
work-related stress aggravated his underlying disease.
52     Veco, Inc. v. Wolfer, 693 P.2d 865, 869 (Alaska 1985); see
also  Miller  v. ITT Arctic Servs., 577 P.2d 1044,  1046  (Alaska
1978) ("[S]ubstantial evidence [is] such relevant evidence  as  a
reasonable mind might accept as adequate to support [the board's]
conclusion.") (internal quotes and citation omitted)).
53    Wolfer, 693 P.2d at 869-70.
54    Id. at 870.
55    Beauchamp v. Employers Liab. Assurance Corp., 477 P.2d 993,
997 (Alaska 1970).
56    Specifically, Dr. Breall noted that Palmer had been a heavy
smoker  before 1996, and was an overweight middle-aged  man  with
low  levels of high density lipoprotein.  Palmer does not contest
these findings or their relevance to his coronary artery disease.
57     Dr. Breall explained that he used the "Type A" designation
as  shorthand  for "a coronary-prone behavior pattern  that  will
include  not only time urgency, but hostility, anger, as well  as
irritability, aggravation, impatience, and so forth."
58    Dr. Breall concluded that Palmer exhibited significant Type
A  behavior after observing his mannerisms during the hearing and
listening  to  his responses to the board's attorney's  questions
involving  Palmer's  reactions to potentially stressful  non-work
episodes  such  as  dealing with traffic  or  waiting  in  lines.
Palmer  does  not  contest  this characterization;  in  fact,  he
admitted that he had a Type A personality.
59     On  cross-examination, Dr. Breall acknowledged  his  prior
published  opinion that workplace stress can sometimes  aggravate
coronary artery disease in Type A individuals.  He explained that
normally  workplace stress has no aggravating effect because  the
"Type A behavior . . . is an inherent part of a person's behavior
pattern  both on and off the job," but that especially  stressful
work  conditions  can elevate Type A reactivity  "in  exceedingly
rare  cases."   But  Dr.  Breall cited  numerous  indications  of
Palmer's  Type  A  reactivity off the job and concluded  that  he
could  not  "visualize  how  the work for  the  Anchorage  Police
Department caused Type A [above] and beyond what it is normally."
Dr.  Breall  testified that "irrespective of how  stressful  [an]
occupation  appears  to people outside that  occupation,  .  .  .
[t]here  is  no predilection for an increased amount of  coronary
artery disease in one occupation or another."
60     Miller  v. ITT Arctic Servs., 577 P.2d 1044, 1048  (Alaska
61    Id. at 1049.
62    627 P.2d 1073 (Alaska 1981).
63    Id. at 1075-76 & n.9.
64     Safeway,  Inc.  v. Mackey, 965 P.2d 22, 29  (Alaska  1998)
(citations  omitted) (limiting Black).  "Further, we  have  never
suggested  that Black stands for a general rule that the  opinion
of  a  physician hired for litigation is not substantial evidence
when it conflicts with that of treating physicians."  Id.
65    Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1189-90
(Alaska 1993).
66    See Part IV.C.1.a (summarizing Dr. Breall's use of objective
medical data to support his conclusions).
67     We  further note that physical examinations are not always
critical or even helpful.  A telephone interview combined with  a
thorough  review  of  medical  records,  even  for  purposes   of
litigation, may produce an evaluation as accurate as the  routine
physical examination performed by a treating physician.  In  this
case,  it  is difficult to understand why Dr. Breall's  testimony
should be viewed skeptically simply because he did not personally
administer  the  treadmill tests he relied  on  in  reaching  his
68     Like  Dr.  Breall,  Dr. Samson made  specific  mention  of
Palmer's  "preserved  ejection fraction" in concluding  that  the
1990 attack caused no lasting damage.
69     973  P.2d  603, 612 (Alaska 1999) (describing "substantial
factor" test).
70     Id.  (explaining that applying but-for  test  in  lieu  of
substantial  factor test would tend to absolve  all  forces  from
liability).   Palmer  argues  that  the  court  could  not   have
permissibly  concluded that stress did not  aggravate  his  heart
disease  where all of the experts acknowledged that stress  could
aggravate  coronary  artery disease.  But the  issue  before  the
board  was  not  whether  stress can  aggravate  coronary  artery
disease  in  general,  but whether Palmer's  work-related  stress
should  be  deemed  a  substantial cause of his  coronary  artery
71    805 P.2d 976, 977 (Alaska 1991).
72    Id.
73    Id. (noting that work-related factors need not be unique or
primary cause of compensable disability).
74     Id.  ("[A]n  employer  can overcome  [the  presumption  of
compensability]  by presenting substantial evidence  that  either
(1) provides an alternative explanation which, if accepted, would
exclude  work  related  factors as a  substantial  cause  of  the
disability; or (2) directly eliminates any reasonable possibility
that  employment  was  a  factor  in  causing  the  disability.")
(citations omitted).
75     The fact that Palmer's treating physician (Dr. Kramer) and
two other physicians (Drs. Mayer and Pecora) either partially  or
fully  disagreed with these opinions is irrelevant to our  review
of  the  board's finding.  Like the AWCB, the PFRB has  the  sole
authority to determine witness credibility, and we do not reweigh
the  evidence  when  reviewing  the  decisions  of  either  body.
Safeway, Inc. v. Mackey, 965 P.2d 22, 29 (Alaska 1998).
76    See Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992)
("It  has always been possible to rebut the presumption . . .  by
presenting  a  qualified expert who testifies  that  .  .  .  the
claimant's  work  was  probably not a substantial  cause  of  the
disability.") (citation omitted).

77    805 P.2d at 978-79.
78    Id.
79    See Miller v. ITT Arctic Servs., 577 P.2d 1044, 1049 (Alaska
1978)   (concluding  that  same  evidence  introduced  to   rebut
presumption  of  compensability was adequate to  support  board's
determination  that  claimant failed to prove job-relatedness  by
preponderance of evidence).
80    424 U.S. 319, 334-35 (1976).
81    Slip Op. at 13.
82    Slip Op. at 11.
83     Suppose  for  example  that a city  official  acting  with
appropriate authority entered into a contract for services with a
party  who performed the services and then submitted a claim  for
payment to the appropriate municipal board after the city refused
to  pay.   The city's only legitimate interest in this  situation
would be to ensure that the board fairly resolved the dispute  by
a  case-specific  application of governing law; it  could  hardly
claim a legitimate interest in a voting process that allowed  the
board  to renege on the city's promise unless it garnered  board-
wide support reflecting diverse perceptions of public policy.
84    The court faults this dissent for failing to cite any cases
holding  that  a  full-body voting rule is unconstitutional  when
used  by  a  quasi-judicial  administrative  tribunal.   But  the
abundance of cases addressing the practice when it is used in the
context   of   political  decision-making  and  the  absence   of
comparable    cases   involving   quasi-judicial   administrative
tribunals  provide  telling  evidence  that,  for  quasi-judicial
tribunals,  the  practice itself is rare, if  not  unprecedented.
And  as pointed out in the text of this dissent, a comparison  of
the  PFRB's  voting  rule  with those of  similar  quasi-judicial
boards  in Alaska yields further evidence that the PFRB's  voting
rule is unique in this context.
85     See AS 14.25.035(a)(1) & (2) (teachers' retirement board);
AS   39.35.030   (public   employees'   retirement   board);   AS
23.30.005(a) (workers' compensation board).
86     See  2 AAC 36.130(b) (teachers' retirement board);  2  AAC
35.170(b)  (public employees' retirement board); AS  23.30.005(f)
(workers' compensation board).
87     The  court's  willingness to condone this  requirement  is
especially  perplexing in light of the court's  recognition  that
the  requirement deprived Palmer of an important property  right.
Given this recognition, today's holding adds an odd twist to  our
recent  decision  in Whitesides v. State, 20  P.3d  1130  (Alaska
2001).   There,  applying Mathews v. Eldridge, we  held  that  if
credibility  plays a role in deciding the issue -  as  the  court
acknowledges it did here - Alaska's due process clause  prohibits
administrative  tribunals from depriving litigants  of  important
property  interests without affording them the right  to  an  in-
person  hearing.   Id. at 1135-37.  In light of today's  opinion,
our  case law now paradoxically holds that due process guarantees
a   litigant  in  Palmer's  shoes  the  right  to  an   in-person
administrative hearing but grants no right to insist that members
of  the administrative tribunal participate in the hearing before