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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Robinson v. Municipality of Anchorage (5/9/2003) sp-5690

Robinson v. Municipality of Anchorage (5/9/2003) sp-5690

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,
e-mail               corrections@appellate.courts.state.ak.us.THE
SUPREME    COURT   OF   THE   STATE   OF   ALASKALEON   ROBINSON,
)                               )      Supreme   Court   No.   S-
10373                         Appellant,                        )
)       Superior   Court    No.     v.                          )
3AN-00-3618       CI                                )MUNICIPALITY
OF     ANCHORAGE,     )       O    P    I     N     I     O     N
)              Appellee.              )     [No.   5690   -   May
9,      2003]_______________________________     )Appeal     from
the   Superior   Court   of   the   State   of   Alaska,    Third
Judicial     District,    Anchorage,     Eric     T.     Sanders,
Judge.Appearances:     Charles   W.   Coe,    Law    Office    of
Charles   W.   Coe,   Anchorage,   for   Appellant.    Trena   L.
Heikes,    Anchorage,   for   Appellee.Before:     Fabe,    Chief
Justice,    Matthews,    Eastaugh,   Bryner,    and    Carpeneti,
Justices.  FABE, Chief Justice.I.  INTRODUCTION
          Leon Robinson appeals the Alaska Workers' Compensation

Board's denial of benefits related to back injuries that he

allegedly suffered in 1992 and 1996 while working as a bus driver

for the Municipality of Anchorage and the Board's refusal to rule

upon the issue of whether Robinson's daily work aggravated his

condition.  Complicating this case is the fact that Robinson was

also injured in a 1993 non-work-related automobile accident which

he settled for over $47,000.  Because substantial evidence

supports the Board's finding that Robinson failed to establish

that his work-related injuries continued to be a substantial

factor in his back condition after he stopped receiving workers'

compensation benefits, we affirm the Board's denial of benefits.

And because it was not clear error for the Board to decline to

answer the question whether Robinson's work aggravates his

condition, we affirm the Board's decision requiring Robinson to

file a new claim addressing this issue.

II.  FACTS AND PROCEEDINGS

     A.   Factual History

                    1.   The 1992 slip-and-fall work-related

               injury

          Leon Robinson has worked as a bus driver for the

Municipality of Anchorage for over ten years.  On the morning of

September 23, 1992, Robinson slipped on the stairs of the bus

that he was driving.  While grabbing the sides of the door to

prevent himself from falling to the ground, he heard a popping

sound in his back.  Robinson finished his shift in the afternoon

and went to the emergency room that evening complaining of back

pain, primarily in the lower left area of his back and radiating

down his left leg to his foot.  The admitting doctor diagnosed

Robinson with a "[l]ow back sprain . . . associated with

sciatica" and noted that Robinson "may well have a herniated

disc," but the doctor also stated that "[t]here is no indication

at this time of central herniation."  The doctor referred

Robinson to Dr. Declan Nolan for a follow-up appointment.

          Dr. Nolan diagnosed Robinson as having "[a]cute lumbar

strain and facet pain.  Doubt disc syndrome.  No radiculopathy."

Dr. Nolan advised Robinson to take ten days off from work, to do

gentle exercises, rest, and take prescribed medications.

Robinson returned to work without restrictions on October 5,

1992, after using paid sick leave from September 27 through

October 4, 1992.  Robinson seeks compensation for wage losses

from September 24 through October 5, 1992.

                    2.   The 1993 non-work-related automobile

               accident

          On December 22, 1993, Robinson's vehicle struck another

vehicle, totaling Robinson's car.  This accident was not work-

related.  Dr. Davis Peterson, who became Robinson's regular

doctor and treated Robinson following this car accident,

diagnosed Robinson with a right foot fracture, a contusion to his

left knee from when his knees struck the dashboard, and

"paraspinal muscle strain."  Robinson also complained of pain to

his right elbow and left thigh and back.

          Robinson missed work from December 22, 1993 to March 1,

1994 because of his injuries.  He was given paid sick leave from

December 22 through January 7, 1994 and was granted medical leave

without pay from January 10 through March 1.  He initially

claimed workers' compensation benefits for both of these periods

but later waived these claims.

          Sometime before May 1995 Robinson contacted the other

driver's insurer, State Farm Insurance Company, seeking damages

to compensate him for his injuries resulting from the car

accident.  Dr. Stephen Thomas, an orthopedist, was retained by

State Farm to perform an independent medical examination to

substantiate Robinson's claims.  Dr. Thomas's report discussed

only Robinson's foot and leg injuries.  Dr. Thomas noted:

          Mr. Robinson states that prior [to] the motor
          vehicle accident he had been walking up to
          seven miles at a time for weight loss and had
          lost approximately 30 pounds and was down to
          about 245.  He felt that he was doing well.
          Since the motor vehicle accident, the most he
          could walk was a mile and he states that
          after a mile he would have a lot of pain.
          
          In April 1995 Dr. Peterson recommended that Robinson

get a lumbar MRI. The lumbar MRI revealed nerve root irritation

caused by a herniated disk.  Dr. Peterson administered an

epidural injection of steroids to treat this condition, but the

injection was ineffective.

                    3.   October 1995 surgery

          Robinson had surgery to treat the herniated disk on

October 11, 1995.  According to Dr. Peterson's report, four weeks

after the surgery, Robinson reported having "no back pain, still

has some right lateral thigh numbness, some occasional spasming

of both legs, but overall is markedly improved with respect to

pain."  Dr. Peterson noted in January and March of 1996 that

Robinson reported experiencing some pain in his back, thigh, and

right knee.

                    4.   1996 bus seat injury

          On August 6, 1996, Robinson injured his lower back when

the back of his bus seat collapsed.  It is undisputed that this

accident temporarily increased Robinson's symptoms.  Dr. Peterson

recommended physical therapy sessions, which Robinson attended

several times in September and October 1996.

          After Robinson obtained a second lumbar MRI in December

1996, Dr. Peterson advised him that "given his occupation as a

professional driver it will be important for him to" exercise his

trunk and back daily.  "He has to work 5 more years before

retiring and I think he will probably be able to do this if he

maintains adequate conditioning."

          Robinson was relieved from his work duties to allow

time for physical therapy in August and September 1997.  He

returned to work full time on January 4, 1998 after the

Municipality refused to pay for further benefits.  However, the

Municipality modified Robinson's job by allowing him to work

split shifts and take extended breaks.  It appears that Robinson

continues his work as a bus driver at present.  Robinson claims

that his back condition requires him to continue to take time off

to recover and to see Dr. Peterson.

          B.   Procedural History

                    1.   Robinson v. State Farm Insurance Co.

          Robinson's attorney, Charles Coe, sent a series of

letters to State Farm Insurance Company, the insurer of the other

driver involved in the 1993 automobile accident, seeking

compensation for Robinson's injuries.  Although Robinson

testified at the workers' compensation board hearing that his

back was not injured in the 1993 accident and that he did not

seek damages from State Farm related to his back, a July 1995

letter from Robinson's attorney to State Farm demanded "the

policy limits plus Rule 82 fees and interest" for Robinson's

expenses in traveling to Stanford and obtaining an MRI in May

1995,1 and for the eight weeks of missed work that were expected

to result from the recommended disc surgery.  A September 1995

letter from Robinson's counsel to State Farm states that "his

1992 back strain was on the left side and normally described as a

muscle strain.  The 1993 injury is to the right side radiating

into his right leg.  He intends to have surgery in the next

couple of weeks. . . .  Once again we demand the policy limits,

plus interest and fees."  An October 1995 letter from Robinson's

counsel to State Farm states that Robinson "is undergoing back

surgery" and that "[h]e did not need surgery prior to this

incident."

          In December 1995 Robinson filed suit against the driver

of the other vehicle for damages for "injuries to his back, foot,

and leg," including "[e]xpenses and medication for medical

treatment" and "[l]oss of wages."  Robinson settled his claim

against State Farm and its insured in March 1996 for

approximately $47,000 for bodily injury, in addition to payments

for property damage.

                    2.   Workers' compensation claims

          On November 14, 1996, Robinson filed a workers'

compensation application for out-of-pocket medical expenses and

"time loss" due to his 1992 slip-and-fall back injury.  He later

amended that application to include claims relating to his 1996

bus seat injury.

          Robinson had initially sought recovery for temporary

partial disability (TPD) benefits and the cost of the 1995

surgery, but he later abandoned these claims, conceding that "his

group insurer has paid for some incurred medical expenses."

          In his hearing brief, Robinson argued that he should

receive temporary total disability (TTD) benefits for the period

from September 1992 to August 1996 and "[t]ime loss [in the form

of TTD benefits] should be awarded after August 1996 for the

periods where Dr. Peterson restricts [him] from working."  In

1997 Robinson received TTD benefits for four weeks.  Robinson

also seeks "medical care for the 1992-1996 period, including his

MRI in 1995 and the related travel expenses he incurred," as well

as medical expenses after August 1996, including "all medications

prescribed by Dr. Peterson, and all care provided, including the

expenses related to the 1996 MRI." He further claims that a 13.5%

permanent partial impairment (PPI), as assessed by Dr. Peterson,

is more appropriate than the ten percent figure assessed by Dr.

Smith "[i]n light of the new injury in 1996 and permanent

increase in symptoms."  Robinson argued that the 1992 and 1996

work accidents were substantial factors in causing his back

condition and that the 1992 accident triggered a weakness in his

back that gradually developed over time.

          On February 22, 1997, Dr. Thad Stanford, an orthopedic

surgeon, examined  Robinson at the Municipality's request.  Also

at the Municipality's request, Dr. Bryan Laycoe, an orthopedic

surgeon, examined Robinson on October 31, 1997.  The Board

granted Robinson's request for a second independent medical

evaluation (SIME) based on its finding that there is "a dispute

between the attending physician [Dr. Peterson] and the employer's

physicians [Drs. Laycoe and Stanford] regarding the causes of the

employee's medical condition." Dr. Douglas Smith, an orthopedic

specialist, performed the SIME in June 1998.

          Both parties filed hearing briefs, and the Board heard

Robinson's claim on December 2, 1999.  For both the 1992 and 1996

injuries, the Board found evidence establishing a "preliminary

link" between the work accident and the employee's injury and

applied a presumption of compensability under Meek v. Unocal

Corp.2  The Board concluded that the Municipality had rebutted

the presumption with substantial evidence in both cases and that

Robinson had failed to prove his claim by a preponderance of the

evidence.

          Robinson petitioned the Board to reconsider his claim

that "the employer is not entitled to notification or offset for

the employee's third-party lawsuit under AS 23.30.015(k)."  He

also sought reconsideration of the Board's denial of benefits

from August to November 1996 and its finding that Robinson's

"physical therapist stated that he was potentially malingering."

The Board denied Robinson's motion.

          Robinson appealed to the superior court in February

2000.  The superior court affirmed the Board's decision in full,

finding that substantial evidence supported all of the challenged

findings.  Robinson appealed to this court.

III. STANDARD OF REVIEW

          When the superior court acts as an intermediate court

of appeal, "we independently review the merits of the

administrative determination."3  "Questions of law which do not

involve any particular agency expertise are reviewed under the

substitution of judgment standard[;] [q]uestions of law involving

agency expertise are reviewed under the `reasonable basis

test'[;] [d]eterminations of fact by an administrative agency are

reviewed under the `substantial evidence' standard."4  Thus, we

"will not vacate findings of the Board when supported by

substantial evidence.  However, if the Board's decision rests on

an incorrect legal foundation . . . , independent review of the

law is proper."5

          On review, we will not reweigh conflicting evidence,

determine witness credibility, or evaluate competing inferences

from testimony because those functions are reserved to the Board.6

Thus, even where there is conflicting evidence, we will uphold

the Board's decision if it is supported by substantial evidence.7

However, we must independently review the evidence and reverse

the Alaska Workers' Compensation Board's decision where we

"cannot conscientiously find that the evidence supporting that

decision is substantial."8

IV.  DISCUSSION

          A.   Burden of Proof

          Alaska Statute 23.30.120(a) provides in pertinent part:

"In a proceeding for the enforcement of a claim for compensation

under [the Alaska Workers' Compensation Act] it is presumed, in

the absence of substantial evidence to the contrary, that . . .

the claim comes within the provisions of the chapter." In Temple

v. Denali Princess Lodge, we laid out the three-step presumption

analysis that applies in workers' compensation cases:

          First, the employee must establish a
          preliminary link between the injury and the
          employment.  This step of the analysis
          requires consideration of "only evidence that
          tends to establish the link.". . .
          
               In the second step, we inquire whether
          the employer rebutted this presumption with
          "substantial evidence that either (1)
          provides an alternative explanation which, if
          accepted, would exclude work related factors
          as a substantial cause of the [injury]; or
          (2) directly eliminates any reasonable
          possibility that employment was a factor in
          causing the disability." . . .
          
               As a third step, once the employer has
          rebutted the presumption that the injuries
          are work related, the employee can prevail
          only if he proves his claim by a
          preponderance of the evidence.[9]
          
The Board applied this three-step presumption analysis to both

Robinson's 1992 and 1996 work-related injuries.

          B.   Robinson Is Not Entitled to Workers' Compensation
          Benefits After May 1993 for Work-Related Injuries
          Sustained in September 1992.
          
          Robinson first argues that his September 1992 work

injury was a substantial factor in causing his current

discomfort.  With regard to Robinson's September 1992 work

injury, the Board concluded:

               We agree with the SIME and conclude that
          the substantial evidence demonstrates the
          employee's September 1992 injury was a strain
          that resolved.  We find the employee's need
          for medical care ended at the end of May
          1993.  We find his 1992 accident did not
          contribute to the employee's later medical
          conditions, need for treatment, or time off.
          We find the employee's subsequent
          "herniation" and back complaints were caused
          by the December 1993 car accident, which
          caused the employee to walk with an antalgic
          ga[it] and by his pre-existing disc
          degeneration.  We conclude the employee has
          received all compensation benefits due and
          owing to him from the 1992 accident.  The
          employee's claim . . . is denied and
          dismissed.
          
          In support of this determination, the Board relied on

testimony of Drs. Smith and Laycoe indicating that Robinson's

need for medical care ended after May 1993.  It also cited

evidence that Robinson's back complaints decreased in 1993 with

his weight loss through exercise.  The Board considered

Robinson's testimony that "he was feeling `pretty good' before

the December 1993 automobile accident, walking up to six miles

per day for exercise and had lost 37 pounds."  Additionally, the

Board found Robinson not to be a credible witness, pointing to

the fact that in his lawsuit against State Farm he asserted that

"his 1992 work accident produced merely a `muscle strain' and `he

did not need surgery prior to this [automobile] incident.'  The

employee now seeks to be reimbursed again for those same expenses

in these workers' compensation claims."

          Robinson challenges the Board's decision.  He contends

that the record does not support Dr. Smith's opinion that the

1992 injury was "self-limited," and he seeks "TTD benefits from

1992 through August 1996" and "additional benefits for time loss

and medical care from May 1993 until after his 1995 surgery."  He

argues that "[t]he 1992 injury triggered a weakness in [his] back

that gradually developed over time, and was continually

aggravated by his job as a bus driver."  He asserts that "the

weight of the evidence" indicates that the 1995 surgery and his

current back pain are "directly related to this early accident

and continuum of aggravations."

          The Municipality does not contest the Board's finding

that Robinson satisfied his burden of establishing a preliminary

link between the 1992 and 1996 injuries and his employment.

Thus, we turn to whether the Municipality "rebutted this

presumption with `substantial evidence that either (1) provides

an alternative explanation which, if accepted, would exclude work

related factors as a substantial cause of the [injury]; or (2)

directly eliminates any reasonable possibility that employment

was a factor in causing the disability.' "10  Because we are

reviewing an administrative agency's decision and because this is

a question of fact, we apply the substantial evidence standard.11

Therefore, we must determine whether the evidence presented by

the Municipality, when viewed without consideration of Robinson's

evidence to the contrary, is such that a reasonable mind would

accept it as adequate to support the Board's conclusion that the

work-related injury was not a substantial factor in Robinson's

post-May 1993 condition.12  The Board found that the Municipality

offered substantial evidence which rebutted the presumption of

compensability.  We agree.

          The Board relied on Dr. Laycoe's February 1997 report,

Dr. Smith's June 1998 report, and Dr. Stanford's October 1997

affidavit, to which he attached his February 1997 report, in

concluding that substantial evidence indicated that Robinson's

need for medical care related to the 1992 injury ended in May

1993.  Dr. Laycoe offered his opinion that the 1992 slip injury

caused Robinson to need treatment "following September, 1992,

over a six week period with occasional follow-up doctor visits

into the spring of 1993.  I do not believe that the 1992 injury

was a substantial factor in his condition in August of 1996 . . .

[or] in causing Robinson's L5-S1 herniation."  Dr. Laycoe

concluded:  "The progression of the degenerative disc disease at

L5-S1 is a result of the degenerative disease and the surgery of

October, 1995, and this is the sole responsibility for his

worsening back pain over the years."  Similarly, Dr. Smith, the

SIME, concluded:  "I do not find a connection between the 1992

industrial injury that is substantial relative to the need for

care after May, 1993, or for the surgery in 1995" and that the

1992 injury "rapidly cleared" and "was relatively self limited."

Dr. Stanford explained in an October 1997 affidavit that

          the September 1992 injury probably did not
          cause the herniation nor the subsequent
          disability and need for medical care and
          surgery . . . .  [T]he most likely cause[s]
          of Mr. Robinson's back pain, lumbar
          herniation and need for surgery [were] the
          injuries sustained by Mr. Robinson in the
          1993 automobile accident . . . and his pre-
          existing obesity.
          
Substantial evidence supports the Board's finding that the

Municipality rebutted the presumption of compensability by

offering an alternative explanation for Robinson's 1995 surgery

and current back pain - namely, the 1993 car accident.13  In

addition to Dr. Stanford's opinion, the letters that Charles Coe,

Robinson's attorney, wrote to State Farm concerning the 1993 car

accident further support this alternative explanation.  Coe

notified State Farm by letter in October 1995 that Robinson

planned to undergo back surgery and that "[h]e did not need

surgery prior to this incident."

          Because the Municipality has overcome the presumption

of compensability, the presumption drops out.  To prevail,

Robinson had to prove to the Board, by a preponderance of the

evidence, that the 1992 work injury was a substantial factor in

causing his need for medical treatment and disability after May

1993.14  "Where one has the burden of proving asserted facts by a

preponderance of the evidence, he must induce a belief in the

minds of the [triers of fact] that the asserted facts are

probably true."15

          Robinson points to Dr. Peterson's April 1997 report in

support of his claim that the 1992 injury caused his current

condition:

          I believe there is a high likelihood that his
          initial slip produced the initial disc
          disruption that gradually progresses to
          bilateral disc herniation with radiculopathy
          requiring microdisectomy.  His motor vehicle
          accident may certainly have been a major
          contributing factor and, in fact, he probably
          had some degree of underlying disc
          degeneration, even preceding his slip on the
          bus steps.
          
          . . . [A]t least part of this most likely is
          work-related and part of it should be
          assessed to the motor vehicle accident and
          some also should be considered pre-existing
          due to degenerative disease.
          
Dr. Peterson's testimony establishes only that the 1992 injury

was one cause of Robinson's condition, but not that it is a

substantial cause.  Moreover, as the Municipality points out,

"even Dr. Peterson, Robinson's treating physician, could not say

the work injuries were substantial factors in Robinson's

condition, disability, impairment, need for medical treatment or

in any need for retraining."  In his deposition, Dr. Peterson

explicitly rejected the theory that the 1992 injury was a

substantial factor in Robinson's present condition.  When asked

whether the 1992 injury was a substantial factor in Robinson's

inability to drive a bus today, Dr. Peterson responded "I can't

say that it is a substantial factor.  It may be a factor, but I

can't really weigh it as substantial."

          In addition, the Board concluded that Robinson was not

credible because he claimed double recovery for his back injury.

The Board's determination of a witness's credibility is given

deference.16  The Board noted that in his third-party lawsuit,

Robinson attributed his back injury solely to the car accident

and claimed damages for his back surgery and related medical

expenses.  Robinson then sought reimbursement from the

Municipality for those same expenses.  He also offered

"contradictory testimony . . . that the December 1993 automobile

accident `didn't play any [part]' in [his] subsequent back

problems."

          Because Robinson's treating physician, Dr. Peterson,

does not advocate strongly the theory that Robinson's 1992 injury

is a substantial factor in his continuing discomfort and because

Robinson attributed his back problems to the 1993 car accident

during his third-party lawsuit, we conclude that the Board did

not err in finding that Robinson failed to prove his claim based

on his 1992 injury by a preponderance of evidence.  We affirm the

Board's ruling that Robinson received all compensation benefits

due and owing to him from the 1992 accident.

          C.   Robinson Is Not Entitled to Workers' Compensation
          Benefits After November 1996 for Work-Related Injuries
          Sustained in August 1996. " \l 2        With regard to
          the August 6, 1996 work injury claim, the Board held
          that Robinson "has received all workers' compensation
          benefits due and owing [from August 6, 1996 through
          November 6, 1996].  Regarding the employee's claim that
he is entitled to additional benefits after November 6,
          1996, we find he has failed to meet his burden of
          proof."  Citing evidence from Dr. Laycoe's report, the
          Board found that Robinson "suffered a lumbar strain in
          August 1996 that resolved in November 1996 and left no
          residuals."  Thus, the Board found "no objective
          medical evidence [that] the employee suffered any
          permanent impairment due to this accident and there is
          no medical testimony that the employee's 1996 work
          accident was a substantial factor in the employee's
          need for medical treatment or additional benefits after
          November 6, 1996."
          
               Robinson argues that his increased symptoms after
          the 1996 work injury are compensable as an aggravation
          of his preexisting condition.  He claims that he should
          be awarded "temporary time loss benefits after August
          1996 for the periods where Dr. Peterson restricted him
          from working, and all medications prescribed by Dr.
          Peterson, and care provided, including the expenses
          related to the 1996 MRI."  Robinson maintains that he
          should be entitled to TTD and compensation for medical
          care expenses "until his own physician rates him as
          medically stable, and then he is entitled to another
          PPI rating for any increased impairment."
          
               Here, as with the 1992 injury, the Municipality
          does not appear to challenge the Board's finding that
          Dr. Smith's report establishes a preliminary link
          between the 1996 work accident and Robinson's post-
          November 1996 back condition.  Dr. Smith noted that
          "[t]he 1996 aggravation after surgery had already been
          performed, could be . . . considered a factor relative
          to his current presentation."  Because this evidence
          establishes the preliminary link between Robinson's
          work and his current condition, we turn to whether the
          Municipality has overcome the presumption of
          compensability.
          
               The Board relied on the October 1997 report of Dr.
          Laycoe in concluding that the Municipality had overcome
          the presumption of compensability.  Dr. Laycoe stated
          that he "do[es] not believe that the [1992 and 1996]
          work injuries remain a substantial factor in
          [Robinson's] condition presently . . . .  [O]ne would
          anticipate the effects of the 1996 strain would have
          only lasted a period of weeks no greater than six to
          eight on a more probable than not basis."  According to
          Dr. Laycoe, Robinson's "back pain would have worsened
          irrespective of the event of August, 1996 . . . . The
          progression of the degenerative disc disease at L5-S1
          is a result of the degenerative disease and the surgery
          of October, 1995, and this is the sole responsibility
          for his worsening back pain over the years."  This
          evidence rebuts the presumption of compensability
          because it establishes an alternative cause for his
          present condition - the progressive degenerative disc
          disease and surgery - and "directly eliminates any
          reasonable possibility that employment was a factor in
          causing the disability."17
          
               The burden thus shifts to Robinson to prove his
          1996 work injury claim by a preponderance of the
          evidence.  Robinson maintains that "[t]he increase in
          [his] symptoms is compensable" and that "all physicians
          agreed" that his symptoms increased after the 1996
          injury.  The Municipality does not dispute that the
          1996 injury temporarily increased Robinson's symptoms.
          The physicians who examined Robinson all agreed that
          the 1996 injury made his preexisting condition
          temporarily symptomatic but caused no structural
          changes.  The issue is whether those symptoms continued
          after November 1996.
          
               Temporary total disability benefits are not
          available to employees once they become medically
          stable.18  Medical stability must be measured by
          objective evidence:
          
               "[M]edical stability" means the date
          after which further objectively measurable
          improvement from the effects of the
          compensable injury is not reasonably expected
          to result from additional medical care or
          treatment, notwithstanding the possible need
          for additional medical care or the
          possibility of improvement or deterioration
          resulting from the passage of time; medical
          stability shall be presumed in the absence of
          objective measurable improvement for a period
          of 45 days; this presumption may be rebutted
          by clear and convincing evidence.19
          
          The Board concluded that the Municipality offered

substantial evidence to show that Robinson reached medical

stability as of November 6, 1996.  Drs. Laycoe and Smith both

concluded that Robinson became medically stable from the effects

of the back sprain by November 1996.

          Although Dr. Peterson disagreed with Drs. Laycoe and

Smith and offered his opinion that Robinson was not medically

stable as of November 1996,20 it is not our role to reweigh the

evidence.21  Because substantial evidence supports the Board's

finding that Robinson failed to prove his claim for benefits from

his August 1996 work injury by a preponderance of the evidence,

we affirm the Board's decision to deny his claim for additional

TTD benefits stemming from the August 1996 injury.

          In addition to temporary total disability, Robinson

also argues that he is entitled to partial permanent impairment

benefits stemming from the 1992 and 1996 work-related accidents.

A claimant is entitled to partial permanent impairment if the

injury is "partial in character but permanent in quality."22  Dr.

Smith concluded that although Robinson suffers from a 10% whole

person permanent impairment, that impairment is not related to

either the 1992 or 1996 injury,23 and that Robinson became

medically stable in November 1996.  Dr. Stanford rated Robinson's

PPI at 10% and could not attribute this rating to the 1992

injury.  Dr. Peterson rated Robinson's PPI at 13.5% because "he's

at high risk for future problems, further increased risk of disk

herniations, [and] recurring back injuries," and he recommended

that Robinson be retrained.  When asked whether the 1992 injury

was a substantial factor in causing Robinson's permanent

impairment, Dr. Peterson stated that "this whole process is

multifactorial."  Substantial evidence supports the Board's

finding that Robinson failed to establish by a preponderance of

evidence that his work injuries were a substantial factor in his

permanent impairment.  Accordingly, we affirm the Board's denial

of PPI benefits.

D.             Robinson Failed To Adequately Raise the Issue of
          Whether His Daily Work as a Bus Driver  Aggravates His
          Back Condition.
          
          In his hearing brief to the Board, Robinson argued that

"there is no question that [his] driving for the city aggravated

his back . . . , which would further warrant an award of

benefits."  The Board ruled that Robinson had not properly raised

this issue:

          The employee never filed a claim seeking
          benefits for such an occupational aggravation
          and there was little argument or evidence
          presented regarding this allegation.  It is
          not clear to us whether the employee is
          claiming cumulative trauma or rather alleging
          that specific incidents caused new claims for
          time loss and the need for further medical
          care.  The employer appropriately relied on
          the employee's claims in preparing its
          defenses and accordingly did not obtain a
          medical opinion regarding whether or not the
          employee's work as a bus driver was a
          substantial factor aggravating his condition.
          
Because the Board did not have enough evidence to properly

evaluate the issue of occupational aggravation, it declined to

rule on that issue.  Instead, it retained jurisdiction to

consider the issue and instructed Robinson to file a workers'

compensation claim form specifically raising that issue, if he so

desired.  We agree with the Board that if Robinson's daily work,

as opposed to the 1992 and 1996 work injuries, is an aggravating

condition for him, he needs to articulate that in a new workers'

compensation claim.  We hold that it was not an abuse of

discretion for the Board to require a new claim.

          E.   The Board Did Not Err in Denying Robinson's Motion
          for Reconsideration.
          
          Alaska Statute 44.62.540(a) provides that an agency

"may order a reconsideration of all or part of the case on its

own motion or on petition of a party."  The Board denied

reconsideration on all three of the issues raised in Robinson's

motion for reconsideration.  Robinson argues that the Board erred

in denying reconsideration on whether the Municipality is

entitled to notification or offset of benefits from August to

November 1996 and on whether he is entitled to additional

benefits.

          With regard to the offset issue, the Board asserted in

its final decision and order, "[t]o the extent the employee

pursues additional compensation benefits the [employer] may be

entitled to a credit, but we do not address the issue at this

time."  The Board concluded in its order on reconsideration:

"Since we did not order any credit or declare the employer was

due a credit, and we expressly declared we would not address the

issue, there is nothing for us to reconsider."24  Neither party

raised the issue of whether the Municipality was entitled to a

credit in the hearing briefs, and the Municipality never raised

it at the workers' compensation hearing.  Because the issue was

not briefed by the parties, it was not squarely before the Board,

and the Board did not err in declining to address the issue.25

And as the Municipality correctly points out, "even if the Board

somehow erred in its comments, the error is harmless as no

decision was rendered and the matter was left for the parties to

raise and argue in the future."

          With regard to the 1996 compensation issue, we affirm

the Board's denial of reconsideration because substantial

evidence, as discussed above with regard to the 1996 injury,

supports its decision.26





V.   CONCLUSION

          Because Robinson failed to establish his claims by a

preponderance of the evidence, we AFFIRM the Board's denial of

additional workers' compensation benefits.  In addition, because

it was not clear error for the Board to decline to rule upon the

issue of whether Robinson's daily work as a bus driver aggravates

his condition, we AFFIRM its decision to require Robinson to file

a new claim that addresses this issue.

_______________________________
1Because  of  Mr. Robinson's size, the MRI machine  in  Anchorage
could  not  accommodate  him, and he had to  travel  to  Stanford
University to have the MRI done.
2914 P.2d 1276, 1279 (Alaska 1996).
3DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).
4Arnesen  v.  Anchorage Refuse, Inc., 925 P.2d  661,  664  &  666
(Alaska  1996) ("Substantial evidence is that which a  reasonable
mind, viewing the record as a whole, might accept as adequate  to
support the Board's decision.") (citation omitted).
5Childs v. Kalgin Island Lodge, 779 P.2d 310, 313 (Alaska 1989).
6Id. at 315.
7DeYonge, 1 P.3d at 94.
8Bouse  v.  Fireman's Fund Ins. Co., 932 P.2d  222,  231  (Alaska
1997).
921 P.3d 813, 816 (Alaska 2001) (citations omitted).
10Id.
11Id. at 815.
12Id. at 815-16.
13See  Big  K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska  1992)
("It  has  always  been  possible to  rebut  the  presumption  of
compensability  by  presenting a qualified expert  who  testifies
that, in his or her opinion, the claimant's work was probably not
a substantial cause of the disability. . . .  [S]uch testimony is
affirmative  evidence  that an injury is  not  work  connected.")
(citations omitted).
14Temple, 21 P.3d at 816.
15Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964).
16AS  23.30.122 ("The board has the sole power to  determine  the
credibility of a witness.  A finding by the board concerning  the
weight  to  be accorded a witness's testimony, including  medical
testimony  and  reports, is conclusive even if  the  evidence  is
conflicting  or  susceptible to contrary conclusions.");  Norcon,
Inc.  v.  Alaska Workers' Comp. Bd., 880 P.2d 1051, 1054  (Alaska
1994)   ("Deference  should  be  given  to  the  Alaska  Workers'
Compensation Board's determination of witness credibility.").
17Temple, 21 P.3d at 815-16; see also Big K Grocery v. Gibson, 836
P.2d  941, 942 (Alaska 1992); Safeway, Inc. v. Mackey,  965  P.2d
22, 27 (Alaska 1998).
18Temporary  total  disability  benefits  are  governed   by   AS
23.30.185:

          In  case of disability total in character but
          temporary  in  quality,  80  percent  of  the
          injured  employee's  spendable  weekly  wages
          shall  be  paid  to the employee  during  the
          continuance  of  the  disability.   Temporary
          total disability benefits may not be paid for
          any  period of disability occurring after the
          date of medical stability.
          
19AS 23.30.395(21).
20In an October 1997 letter, Dr. Peterson wrote that Robinson was
not medically stable as of that date.  He elaborated: "[Robinson]
has   stabilized  since  driving  discontinued.   If  permanently
reassigned,  or  retired  from  driving,  [Robinson]   would   be
considered  stable  as  [symptoms] are exacerbated  &  [Robinson]
deteriorates [with] driving."
21Robinson argues that because he went to physical therapy  after
November 1996, he was receiving "additional medical care"  within
the  meaning of AS 23.30.395(21) and so he could not be  declared
medically  stable.  However, the fact that he received  treatment
is   insufficient  evidence  of  medical  instability  absent   a
reasonable expectation of objectively measurable improvement from
that  care.   AS 23.30.395(21).  The physical therapist  treating
Robinson  noted that his "[s]ubjective complaints do  not  equate
[with]  objective changes" and that "[s]econdary gain issues  may
come  into  play."   Given this evidence  that  Robinson  may  be
malingering,  the  Board did not err in concluding  that  he  was
medically  stable  due  to  the lack  of  objective  evidence  of
continuing improvement.
22AS 23.30.190.
23This  is  consistent with the Municipality's  argument  in  its
hearing  brief: "The employer does not dispute that the  employee
may be unable to work as a bus driver for the Municipality due to
his  physical condition, which includes narcolepsy, obesity,  low
back  pain, diverticulitis, carpal tunnel, hernias and a host  of
other non-work related conditions. The employer does not believe,
however,  the 1992 and 1996 injuries are substantial  factors  in
the need to change occupations."
24The  Board's statement that the employer may be entitled  to  a
credit was a gratuitous remark with no legal effect.
25Legge v. Greig, 880 P.2d 606, 609 (Alaska 1994) ("An issue given
only   cursory   treatment  in  a  brief  will  be   treated   as
abandoned.").
26We  note that while substantial evidence does exist to  support
the  Board's  decision, its assertion that "[w]e  could  find  no
objective  medical evidence the employee suffered  any  permanent
impairment  from  his  1996 accident, and there  was  no  medical
testimony  the  employee's 1996 work accident was  a  substantial
factor in the employee's need for medical treatment or additional
benefits  after  November 6, 1996" seems overstated.   The  Board
recognized  in  its  first decision that some evidence  suggested
that  Robinson's  current discomfort stems from  the  1996  work-
related  accident:  "When asked if he could  say  the  employee's
August  1996  injury was a substantial factor in  the  employee's
continuing need for medical treatment, Dr. Peterson testified . .
.  `I  can't discount it.' "  Robinson's situation is aggravated,
and  he  is  permanently impaired.  To say "no objective  medical
evidence" exists ignores evidence in the record.