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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Crawford & Co. v. Baker-Withrow (12/19/2003) sp-5763

Crawford & Co. v. Baker-Withrow (12/19/2003) sp-5763

     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,
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     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

CRAWFORD & COMPANY and   )
NATIONAL UNION FIRE INS. CO.  )    Supreme Court No. S-10141
PITTSBURGH,                   )
               Appellants,         )
                              )    Superior Court No.
     v.                       )    4FA-00-1911 CI
                              )
PENNY T.R. BAKER-WITHROW,     )    O P I N I O N
                              )
               Appellee.      )    [No. 5763 - December 19, 2003]
                              )


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

          Appearances:  Zane D. Wilson, Cook, Schuhmann
          &  Groseclose, Inc., Fairbanks, for Appellant
          Crawford & Company.  Penny Baker-Withrow, pro
          se, North Pole.

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

          MATTHEWS, Justice.
          FABE, Chief Justice, dissenting.

            Alaska  Statute  23.30.155(o)  requires  the   Alaska

Workers'  Compensation Board to notify the Division of  Insurance

when  it  determines that an insurer has frivolously or  unfairly

controverted  a  compensation claim.  Upon receiving  notice  the

division  must  determine whether the insurer  has  committed  an

unfair  claim  settlement  practice  under  AS  21.36.125.    The

question  presented  here  is whether a  board  determination  of

unfair  controversion is a final appealable order.  We hold  that

it  is  because  the  board's decision_making  process  has  been

completed  and  its determination has an adverse  effect  on  the

insurer since it is binding on the Division of Insurance.

           In  an order on reconsideration entered July 28, 2000,

the Alaska Workers' Compensation Board determined that Crawford &

Company   had   unfairly  and  frivolously  controverted   claims

submitted by Penny Baker-Withrow on August 30, 1996, and November

5,  1997.  In an earlier order the board also found that Crawford

"did  not  act in good faith."  This finding was not modified  on

reconsideration.  The dispositional portion of the board's  order

provided:

               Based on the Board's finding the insurer
          has   committed   a   frivolous   or   unfair
          controversion, we will send a  copy  of  this
          decision  to  the  Division of  Insurance  to
          determine  if  the insurer has  committed  an
          unfair claim settlement practice.
          
The  order also provided that it "is a final decision"  and  that

"[p]roceedings  to  appeal must be instituted in  Superior  Court

within  30  days . . . ."  Crawford appealed this  order  to  the

superior  court,  which  held that there  was  not  yet  a  final

administrative  order  to  appeal from because  the  Division  of

Insurance  had not yet determined whether Crawford had  committed

an unfair claim settlement practice.

           From  the superior court's dismissal on these grounds,

Crawford  appealed to this court.   We entered an  interim  order

stating:

               The question in this case is whether the
          board's  finding  that Crawford  and  Company
          frivolously or unfairly controverted  Baker's
          claim  is  an appealable order.  The  finding
          was   made   pursuant  to  AS  23.30.155(o).1
          Under  the terms of that subsection the board
          must  notify  the Division of Insurance  when
          such  a finding is made, and when so notified
          the   division  must  determine  whether  the
          insurer   has   committed  an  unfair   claim
          settlement   practice.    Critical   to   our
          determination of appealability is whether the
          board's  finding  is  binding  in  subsequent
          proceedings  conducted by  the  division,  or
          whether  the  insurer can relitigate  whether
          its controversion was frivolous or unfair  as
          an  original matter in the proceedings before
          the  division.   The regulations,  practices,
          and  procedures, if any, of the  Division  of
          Insurance  concerning  the  effect  of  board
          findings  under  subsection .155(o)  will  be
          important   in   determining   whether   such
          findings   are  binding.   No   evidence   or
          information    as   to   such    regulations,
          practices, and procedures has been presented.
          
               Accordingly, It is Ordered:
          
                That  this  case  is  remanded  to  the
          superior  court  with  instructions  to  make
          findings  as  to  [the]  existence   of   any
          regulations, practices, or procedures of  the
          Division  of  Insurance  concerning   whether
          board  findings under subsection .155(o)  are
          treated  as binding.  In order to  make  such
          findings  the  superior court should  request
          supplemental memoranda from the  parties  and
          the   State  of  Alaska.   In  addition,  the
          superior  court may authorize  discovery  and
          may conduct an evidentiary hearing if, in the
          judgment  of  the court, such  a  hearing  is
          needed.   This court will retain jurisdiction
          pending  receipt  of the  findings  from  the
          superior court.
          
           On  remand the only evidence submitted to the superior

court  was  the  affidavit of Robert Lohr, the  Director  of  the

Division of Insurance.  He stated that the division would not re-

examine  a board finding of frivolous controversion and  that  it

was  the  division's  duty  to determine  whether  the  frivolous

controversion  amounted  to an unfair  trade  practice  under  AS

21.36.125.2    (b) The provisions of this section do  not  create

or  imply  a  private  cause of action for a  violation  of  this

section.   He observed that the elements necessary for a  finding

of  an  unfair claim settlement practice "may be similar to those

necessary  for  a  board finding of frivolous controversion,  but

they  are not congruent."3     6.   It is the division's  general

practice  -  and one followed in the instant case -  to  stay  an

investigation and determination under AS 21.36.125,  pending  the

outcome  of  an  appeal of a board finding.  The  superior  court

found that the frivolous controversion finding was not binding on

the  Division  of  Insurance, but could not be  reversed  by  the

division.  The court found that the finding served as a basis for

the  board's  referral and determined that  if  the  Division  of

Insurance should find that Crawford had committed an unfair claim

practice  then  the company could appeal that order.   Under  the

interim  order  the question of appealability  is  now  ripe  for

decision before this court.

           A  party  to an administrative adjudicative proceeding

has  the  right  to appeal a final administrative  order  to  the

superior  court.4   But  sometimes it is difficult  to  determine

whether an agency order is final for the purposes of appeal.5  We

have  observed that the test used in Alaska to determine finality

is  "essentially a practical one."6  In State, Department of Fish

&  Game,  Sport Fish Division v. Meyer we stated that one measure

of   finality   "is   whether  the  agency  has   completed   its

decisionmaking process, and whether the result of that process is

one that will directly affect the parties."7

           In  the present case this standard is met.  The  board

has  completed  its  decision-making process as  to  whether  the

controversions  in question were frivolous.  The  result  of  the

order will directly affect Crawford because the order mandates an

investigation by the Division of Insurance as to whether Crawford

has committed unfair claim settlement practices and may serve  as

a  foundational fact supporting a determination that Crawford has

committed such practices.  In proceedings before the Division  of

Insurance  the  board's  frivolous  controversion  determinations

cannot  be  questioned on evidentiary or legal grounds  and  thus

will  be  binding.  Since the elements of a frivolous  or  unfair

controversion  under AS 23.30.155(o) are similar  to  the  unfair

claim settlement practice defined in AS 21.36.125(a)(6) - failing

to "attempt in good faith to make prompt and equitable settlement

of  claims in which liability is reasonably clear" -  the board's

determinations will go a long way toward establishing  an  unfair

claim settlement practice.

          The fact that any decision of the Division of Insurance

determining  that Crawford had committed unfair claim  settlement

practices  would  itself be appealable does  not,  in  our  view,

destroy  the  finality  of the board's order.   The  Division  of

Insurance   is  a  separate  agency  from  the  Alaska   Workers'

Compensation  Board  and  proceedings  before  the  division  are

separate  from proceedings before the board.  The division  gives

binding   effect   to   the   board's   frivolous   controversion

determination  and asks whether the frivolous controversion  also

constitutes an unfair claim settlement practice, or some  of  the

elements of an unfair claim settlement practice.  This use of the

board's   determination  and  the  fact  that  the  determination

requires  Division of Insurance action are, in our  view,  direct

effects sufficient to impart finality to the board's order.

           The  board's  findings must be  subject  to  appellate

review  at  some point.8  If review were delayed until  a  direct

appeal  of Division of Insurance proceedings that found an unfair

claim   settlement  practice  based  on  the  board's   frivolous

controversion  determination,  an anomalous  situation  would  be

present.   The  correctness of the decision of  the  Division  of

Insurance  would not necessarily be under review.   Instead,  the

critical  question could be the legal and evidentiary sufficiency

of  the determinations made by the Workers' Compensation Board in

the  collateral proceeding.  The rules governing judicial  review

of agency action provide that the agency from which the appeal is

taken  has  the  responsibility  for  preparing  the  "record  of

proceedings  before  the agency" including a  typed  transcript.9

The  agency is a party to the appeal that may brief and argue its

position.10  How these provisions would work in an appeal from  a

decision   of   the   Division  of  Insurance   that   questioned

determinations  made  by  the Workers' Compensation  Board  is  a

question  having  no  ready answer in the  appellate  rules.   Of

course,  answers  might  be improvised,  as  they  should  be  if

necessary  to preserve a party's right to appeal.  But  the  need

for  improvisation  highlights that  the  better  answer  to  the

problem  is  to adhere to the established standards  of  finality

expressed  in Meyer and look to "whether the agency has completed

its decisionmaking process" and whether the result "will directly

affect the parties."11

           One  practical  consequence of our  holding  that  the

board's determination of frivolous or unfair controversion  under

AS  23.30.155(o)  is appealable may be to delay the  Division  of

Insurance's determination as to whether Crawford has committed an

unfair  claim settlement practice.  Lohr stated in his  affidavit

that   it   is  the  division's  general  practice  to  stay   an

investigation  and determination pending the appeal  of  a  board

finding.12   Although  we can understand  the  reasons  for  this

practice,  it is not required by law.  Unless a stay is  entered,

final  administrative orders have binding effect even  though  an

appeal from them is pending.13  Thus there is no legal impediment

to  the  division's investigation going forward during the appeal

of  the board's decision.  Moreover, if we were to hold that  the

board's  decision  is  not appealable until  after  the  division

conducts an investigation and makes a determination, there  would

be  other  practical  consequences.   If  we  were  to  determine

ultimately  that the board's findings were invalid and  therefore

that  sanctions imposed by the division must be reversed  because

they  were premised on the board's findings, there would be  much

wasted  effort  and money on the part of both  Crawford  and  the

Division  of  Insurance.  Whether that waste is  worse  than  the

delay  inherent  in  the division's current  practice  is  fairly

debatable.   It  is enough for our purposes to observe  that  the

answer  is not so one sided, nor is the possibility of  delay  so

critical, as to cast doubt on the application to this case of the

Meyer standards of administrative finality.

           For  the  above reasons, the judgment of the  superior

court is REVERSED and this case is REMANDED to the superior court

with instructions to review the merits of Crawford's arguments on

appeal.

FABE, Chief Justice, dissenting.

           I  disagree  with  the  court's  conclusion  that  the

Workers'   Compensation  Board's  post-settlement  finding   that

Crawford and Company frivolously and unfairly controverted  Penny

Baker-Withrow's  claim is a final, appealable  order.   I  depart

from  the  court's reasoning on several grounds.  The  court  has

created  the  right  to an appeal that frequently  will  have  no

appellee.   Furthermore, the Board's finding fails our  test  for

identifying  final appealable agency orders because it  does  not

require  Crawford to take any action.  The finding therefore  has

no  direct  effect  on the company.  And we do  not  need  to  be

concerned  with the preclusive effect of the Board's  finding  as

even  Crawford  admits  it  is not binding  on  the  Division  of

Insurance.  Finally, allowing this type of appeal will delay  the

Division's  investigations,  to the  detriment  of  the  workers'

compensation  scheme and the public policy behind  it.   I  would

affirm  the  superior court's dismissal of Crawford's appeal  and

therefore  respectfully  dissent from  the  court's  opinion  and

judgment.

           "The test for determining whether a judgment is or  is

not final is essentially a practical one."14  Without even turning

to  our  doctrine on finality, I believe that the court's holding

cannot  meet this simple standard of pragmatism because  in  many

cases  there will be no appellee to defend the appeal  the  court

today allows.  A claimant like Baker-Withrow has already received

the money she needs to make her whole and pay her lawyer.  If the

employer appeals only the controversion finding, and compensation

is not at stake, the employee has no reason to defend the appeal.

She will be no better off if the courts affirm the Board than  if

they  reverse it.  And she has no way, other than her own out-of-

pocket  funds,  to pay her lawyer to chase the appellant  through

the appeals process.15  As I explain below, the only direct effect

of   the   Board's  ancillary  finding  of  frivolous  or  unfair

controversion is that the Division of Insurance will initiate  an

investigation into whether the employer or insurer has engaged in

unfair  claim settlement practices - an investigation  that  must

look  beyond  the facts of the original claimant's  case.16   The

Division  undertakes this investigation in the  public  interest,

not  to  advance  the claimant's goals.17   The claimant  has  no

direct  stake in the investigation's outcome, or even in  whether

it  happens or not.  As the court points out, the Board may  take

part in an appeal to protect its own interests.18  Unfortunately,

in  this  case  the Board has determined it has no  interest  not

represented by one of the parties.19  By allowing this appeal, and

by  leaving a pro se litigant like Baker-Withrow to handle it  on

her own, the court and the Board are asking workers' compensation

claimants to help police claim settlement practices by serving as

private  attorneys  general, without  any  of  the  rewards  that

normally attend fulfilling such a role in a qui tam action  or  a

citizen suit.  Although Baker-Withrow has chosen to take  on  the

task,  I  doubt that many claimants in her position will  do  the

same.   We  will  be left deciding appeals based  only  upon  the

arguments  of appellants - a notably poor way of getting  at  the

truth of the matter.

           The one-sided nature of this type of appeal should  at

least  pique our suspicion that the Board's finding  is  not  the

sort  of  order  we ought to consider final and  appealable.   To

determine   whether  the  administrative  order  is   final   and

appealable, the court uses the two-part test laid out  in  State,

Department  of Fish & Game, Sport Fish Division v. Meyer,  asking

"whether the agency has completed its decisionmaking process, and

whether  the  result  of that process is one that  will  directly

affect the parties."20  I agree with the court that the Board has

completed  its decisionmaking process in this case, but  I  would

hold  that the finding of frivolous and unfair controversion will

not  directly affect Crawford and Company within the  meaning  of

Meyer.

           We  have not had occasion to analyze what it means for

an  agency decision to "directly affect the parties."  Cases from

other  jurisdictions  that  have  considered  the  question  have

generally  granted  review  only for agency  orders  that  impose

definite and concrete obligations on parties or otherwise  govern

their behavior.  In Franklin v. Massachusetts,21 the source of our

Meyer  test,  the  United  States Supreme  Court  held  that  the

question  of  finality hinges on "whether [the agency decision's]

impact  `is sufficiently direct and immediate' and has a  `direct

effect  on  .  .  . day-to-day business.' "22  Appealable  agency

action  "imposes an obligation, denies a right, or fixes a  legal

relationship."23   The Board's finding of frivolous controversion

does   none  of  these.   It  only  triggers  the  investigation.

Crawford  is  not  required by the Board's finding  to  take  any

action,  nor is the company barred from any action.  The  Board's

finding  compels no change in the company's behavior.  Its  legal

status is no different than it was before the finding.  The  only

possible  current  effect  on  Crawford  is  the  harm   to   its

reputation.  Such damage is not only speculative but is  also  an

"inherent  incident[]  of  [an] open  and  public  administrative

process"24  and  insufficient  to  allow  an  appeal  before  the

investigation has even begun.

           The  court's  holding that the Board's  nondispositive

finding  directly  affects Crawford is driven by  an  unwarranted

concern  that  an immediate appeal is Crawford's last  chance  to

challenge  the Board's finding, because the Division of Insurance

will  give  it  "binding  effect."25   An  immediate  appeal   is

necessary,  the  court reasons, because the  Board's  finding  of

frivolous  and  unfair controversion "will go a long  way  toward

establishing an unfair claim settlement practice" of "failing  to

`attempt in good faith to make prompt and equitable settlement of

claims in which liability is reasonably clear,' " because the two

determinations  have "similar" "elements."26   But  there  is  no

suggestion in the record that any sort of formal preclusion is at

work in the Division's proceedings.

           The affidavit filed by Robert A. Lohr, Director of the

Division  of Insurance, does state that the Board's findings  are

not  open to relitigation.  But again, the only mandatory  effect

of  those findings is to trigger the investigation.  This  is  an

essentially  executive action and does not warrant  an  appeal.27

Director  Lohr further states that the Board's finding  would  be

"relevant, probative and persuasive on the question of whether an

unfair claim settlement practice . . . has occurred."  This  does

not  imply the "binding effect" that worries the court.   Rather,

Lohr's  affidavit makes clear that the Division views the Board's

finding  as good evidence of an unfair claim settlement practice,

but  that the finding does not conclusively establish any element

of that determination.

           Crawford itself concedes that the Board's finding does

not  have  a conclusive effect on the Division's decision:   "The

Division   of  Insurance  can  only  determine  whether  Crawford

committed  an  unfair  claims settlement  practice,  not  whether

Crawford frivolously or unfairly controverted benefits .  .  .  .

[T]here  are  no  provisions  of  the  Unfair  Claims  Settlement

Practices  Act  that  correlate directly to the  Board  making  a

determination of a frivolous or unfair controversion."  Thus, the

Board's   finding  is  not  legally  conclusive  or  irrebutable.

Crawford  will  be able to rebut the finding's relevance  to  the

question  that  is  before  the Division:   whether  any  of  the

company's  violations  of AS 21.36.125 have  been  "committed  so

frequently  as to become a trade practice."28  The  company  will

also  be able to appeal any adverse determination that relies  on

the Board's finding.  This appeal, to which the Division will  be

a  party, is sufficient to safeguard Crawford's rights.  There is

no call for us to provide the company with an extra appeal before

the  investigation has led to any determination about  Crawford's

practices, let alone before it has even begun.

           Finally, the court has granted insurers two levels  of

appeal  of  an  ancillary  finding of the  Board,  first  to  the

superior court and then to this court, ensuring that any Division

investigation  triggered by such a finding will  be  delayed  for

years.   It  is the Division's practice to stay its investigation

while an appeal of the triggering finding is pending.  This delay

will  weaken  the Division's ability to oversee and regulate  the

workers'  compensation insurance industry.  Our respect  for  the

public  policy  embodied in Alaska's workers'  compensation  laws

should warn us away from impeding the Division's work.  Under the

scheme  the legislature enacted, employees "relinquish[] whatever

rights  they  had at common law in exchange for a  sure  recovery

under  the compensation statutes."29  Employers must be  held  to

account  for their end of the deal - their liability is  limited,

but  they are required to play by the rules and compensate  their

workers  in  good faith.30  The delaying tactics that  the  court

sanctions   in  this  decision  will  dilute  the   Division   of

Insurance's ability to police the bargain.

          For all of these reasons, I respectfully dissent.

_______________________________
1AS 23.30.155(o) provides:

                The  board  shall promptly  notify  the
          division of insurance if the board determines
          that  the  employer's insurer has frivolously
          or  unfairly  controverted  compensation  due
          under  this chapter.  After receiving  notice
          from  the  board, the division  of  insurance
          shall  determine if the insurer has committed
          an  unfair claim settlement practice under AS
          21.36.125.
          


2AS 21.36.125 provides:

                  (a) A person may not commit any  of
            the following acts or practices:
                  (1)  misrepresent facts  or  policy
            provisions  relating to  coverage  of  an
            insurance policy;
                  (2)  fail  to acknowledge  and  act
            promptly upon communications regarding  a
            claim arising under an insurance policy;
                  (3)  fail  to  adopt and  implement
            reasonable    standards    for     prompt
            investigation of claims;
                  (4) refuse to pay a claim without a
            reasonable  investigation of all  of  the
            available  information and an explanation
            of  the basis for denial of the claim  or
            for an offer of compromise settlement;
                  (5) fail to affirm or deny coverage
            of claims within a reasonable time of the
            completion of proof_of_loss statements;
                 (6) fail to attempt in good faith to
            make  prompt and equitable settlement  of
            claims  in  which liability is reasonably
            clear;
                  (7) engage in a pattern or practice
            of  compelling insureds to  litigate  for
            recovery  of amounts due under  insurance
            policies  by offering substantially  less
            than the amounts ultimately recovered  in
            actions brought by those insureds;
                 (8) compel an insured or third_party
            claimant in a case in which liability  is
            clear  to  litigate for  recovery  of  an
            amount  due under an insurance policy  by
            offering an amount that does not have  an
            objectively reasonable basis in  law  and
            fact and that has not been documented  in
            the insurer's file;
                  (9) attempt to make an unreasonably
            low  settlement by reference  to  printed
            advertising   matter   accompanying    or
            included in an application;
                  (10)  attempt to settle a claim  on
            the basis of an application that has been
            altered  without  the  consent   of   the
            insured;
                  (11)  make a claims payment without
            including  a  statement of  the  coverage
            under which the payment is made;
                  (12)  make  known to an insured  or
            third_party   claimant   a   policy    of
            appealing  from an arbitration  award  in
            favor   of   an  insured  or  third_party
            claimant  for  the purpose of  compelling
            the  insured  or third_party claimant  to
            accept  a  settlement or compromise  less
            than the amount awarded in arbitration;
                  (13) delay investigation or payment
            of  claims  by  requiring  submission  of
            unnecessary  or substantially  repetitive
            claims reports and proof_of_loss forms;
                  (14) fail to promptly settle claims
            under  one  portion of a policy  for  the
            purpose of influencing settlements  under
            other portions of the policy;
                  (15)  fail  to promptly  provide  a
            reasonable  explanation of the  basis  in
            the  insurance policy in relation to  the
            facts or applicable law for denial  of  a
            claim  or  for the offer of a  compromise
            settlement;  or
                  (16) offer a form of settlement  or
            pay  a  judgment in any manner prohibited
            by AS 21.89.030;
                  (17)  violate a provision contained
            in AS 21.07.
3In full, the Lohr affidavit states:

                       Robert  A.  Lohr, being  first
            duly sworn states:
            
                  1.   I am the director for Alaska's
            Division  of Insurance.  I have  personal
            knowledge of the facts contained in  this
            affidavit.
            
                  2.    I  offer  this  affidavit  to
            present  the division's understanding  of
            the interplay between AS 23.30.155(o) and
            AS 21.36.125 and the division's practices
            based on that understanding.
            
                   3.     When  the  Alaska  Workers'
            Compensation Board makes a finding that a
            frivolous controversion has occurred,  it
            notifies   the  Division  of   Insurance,
            pursuant  to .155(o).  The division  will
            not   re-examine   a   determination   of
            frivolous  controversion  by  the  board.
            The  division  does  not  relitigate  the
            factual findings of the board that led to
            the  finding  of frivolous controversion,
            nor  will  the  division  relitigate  the
            board's   conclusion  that  a   frivolous
            controversion occurred.
            
                  4.    The division's statutory duty
            is  to  determine whether  the  frivolous
            controversion   found   by   the    board
            constitutes  an unfair trade practice  in
            violation  of AS 21.36.125,  and  if  so,
            what  penalties  are  appropriate.    The
            elements  necessary for a finding  of  an
            unfair  claim settlement practice may  be
            similar  to those necessary for  a  board
            finding  of frivolous controversion,  but
            they are not congruent.  A finding by the
            board  of frivolous controversion may  be
            and  usually  would be  relevant  to  the
            determination   of   an   unfair    claim
            settlement  practice,  but  it   is   not
            necessarily dispositive of the question.
            
                  5.    It  is still the case that  a
            board  finding of frivolous controversion
            may be relevant, probative and persuasive
            on  the  question  of whether  an  unfair
            claim   settlement  practice   under   AS
            21.36.125  has  occurred  -  and  such  a
            finding often provides the foundation for
            an investigation and ultimate [decision].
            
4Alaska R. App. P. 601(b); AS 44.62.560(a).
5See  Mukluk Freight Lines, Inc. v. Nabors Alaska Drilling, Inc.,
516  P.2d 408, 411 (Alaska 1973), where we quoted the observation
that  " `final' in the context of appealability [is] an `abstruse
and  infinitely uncertain term.' "  Id. at 411 n.11 (quoting Will
v.   United   States,  389  U.S.  90,  108  (1967)  (Black,   J.,
concurring)).
6Matanuska Maid, Inc. v. State, 620 P.2d 182, 184 (Alaska 1980).
7906   P.2d  1365,  1370  (Alaska  1995)  (quoting  Franklin   v.
Massachusetts, 505 U.S. 788, 797 (1992)).
8AS 44.62.560(a); Alaska R. App. P. 601(b).
9Alaska R. App. P. 604(b)(1)(A).
10Alaska R. App. P. 602(h).  The board frequently participates as
a  party  in cases on appeal when it determines that  it  has  an
institutional interest separate from the interest of the parties.
On  remand  under our interim order the board filed a  notice  of
nonparticipation that stated in relevant part:

                The  Alaska Workers' Compensation Board
          has determined it has no independent interest
          in  this  appeal only of its  decision.   The
          Attorney    General's   office    will    not
          participate on the Board's behalf unless  the
          undersigned is advised by letter from a party
          that it believes the Board has an independent
          interest  or receives notice from  the  Court
          under Alaska App. Rule 514(f).
          
Because the board in this case has an interest in sustaining  the
validity  of  its  orders  that will not  be  duplicated  by  the
interests  of  a party represented by counsel, we recommend  that
the  superior court on remand of this decision notify  the  board
that  it has an independent interest in the proceeding and invite
the participation of the attorney general on the board's behalf.

11906 P.2d at 1370.
12See supra note 3.
13See  Pipeliners  Union  798 v. Alaska State  Comm'n  for  Human
Rights,  681  P.2d 330, 336 (Alaska 1984) ("[I]n  a  consolidated
proceeding of an action to enforce an [administrative] order  and
the  appeal of that order, an enforcement judgment may be entered
before  the order is reviewed unless the court imposes a stay  of
the enforcement cause of action.").
14Matanuska Maid, Inc. v. State, 620 P.2d 182, 185 (Alaska  1980)
(citations and internal quotation marks omitted).
15By the time supplemental briefs were filed in the present case,
Baker-Withrow was without counsel and representing herself.
16See O.K. Lumber Co., Inc. v. Providence Washington Ins. Co., 759
P.2d 523, 526-27 (Alaska 1988).
17See  AS 21.36.125(b)  ("The provisions of this section  do  not
create or imply a private cause of action for a violation of this
section."); O.K. Lumber, 759 P.2d at 527.
18Slip Op. at 9 & n.10.
19Id.
20Slip Op. at 7 (quoting State, Dep't of Fish & Game, Sport  Fish
Div.  v.  Meyer,  906  P.2d  1365, 1370  (Alaska  1995)  (quoting
Franklin v. Massachusetts, 505 U.S. 788, 797 (1992))).
21505 U.S. 788, 797 (1992).
22Id. at 796-97 (quoting Abbot Laboratories v. Gardner, 387  U.S.
136, 152 (1967)) (second alteration in original).
23Geyen  v.  Marsh,  775  F.2d 1303, 1309  n.6  (5th  Cir.  1985)
(citation omitted).
24Brian v. State By & Through Oregon Gov't Ethics Comm'n, 868 P.2d
1359, 1362-63 (Or. App. 1994).
25Slip Op. at 8.
26Slip Op. at 8 (quoting AS 21.36.125(a)(6)).
27Cf. International Waste Controls, Inc. v. SEC, 362 F. Supp. 117,
199  (S.D.N.Y.  1973)  (holding  that  an  order  initiating   an
investigation is "not reviewable until a final order  is  entered
as a result of the investigation") (citation omitted).
28O.K. Lumber, 759 P.2d at 527.
29Wright v. Action Vending Co., Inc., 544 P.2d 82, 84-85  (Alaska
1975)  (quoting Smither & Co. v. Coles, 242 F.2d 220,  222  (D.C.
Cir. 1957)).
30Id.; AS 21.36.125(6) (requiring good faith attempt to "settle[]
claims in which liability is reasonably clear").