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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Municipality of Anchorage v. Devon (12/02/2005) sp-5961

Municipality of Anchorage v. Devon (12/02/2005) sp-5961

     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 ALASKA

MUNICIPALITY OF ANCHORAGE, )
and WARD NORTH AMERICA, )
INC., )
) Supreme Court No. S- 11368
Appellants, )
) Superior Court No.
v. ) 3AN-02-7516 CI
)
SAMUEL DEVON, ) O P I N I O N
)
Appellee. ) [No. 5961 - December 2, 2005]
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, William F. Morse, Judge.

          Appearances: Trena L. Heikes, Law  Office  of
          Trena  L.  Heikes, Anchorage, for Appellants.
          Robert   A.   Rehbock,  Rehbock  &   Rehbock,
          Anchorage, for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          The  main question presented in this appeal is  whether
the  Alaska  Workers  Compensation Board  erred  in  denying  the
Municipality of Anchorages petition for reimbursement of  workers
compensation  benefits  paid to Samuel Devon.   The  municipality
argues  on appeal that: (1) the board lacked substantial evidence
to  dismiss  its petition in light of surveillance tapes  showing
Devon engaging in activities allegedly at odds with his claims of
injury,  and  (2)  the board erred in admitting  certain  medical
records  without  allowing an opportunity for  cross-examination.
Because  the  testimony  of  one of  Devons  treating  physicians
provided  substantial  evidence for the board  to  conclude  that
Devon  did not misrepresent his condition in a way that  garnered
him  increased benefits, and because the superior court correctly
concluded that any error associated with admission of the medical
records was harmless, we affirm.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Samuel  Devon  began  working for the  Municipality  of
Anchorage  in  May   1993 and was employed as a  refuse  disposal
technician.  While employed by the municipality, Devon  sustained
four injuries: (1) on February 1, 1995 he reported neck pain from
having  to  continuously  look  over  his  right  shoulder  while
operating a bulldozer; (2) on April 25,1998 he injured  his  neck
and  upper  spine after a sixteen-foot fall; (3) on  October  19,
1999  he  suffered  pain in his neck after hitting  three  raised
manholes while operating a grader; and (4) on January 20, 2001 he
reported  severe neck pain stemming from the vibration associated
with  operating  a grader.  After the 1998 fall,  Devon  had  two
surgeries: in June 1998 he had his C6 and C7 vertebrae surgically
fused and in November of that year he had arthroscopic surgery on
his  right shoulder to remedy various problems, including a  SLAP
lesion, which is a tear in the cartilage of the shoulder joint.
          In  July  2000  Devon  underwent a physical  capacities
evaluation (PCE) to determine whether he could continue  to  work
as a heavy equipment operator.  Devon was able to push and pull a
350-pound  cart,  although at 400 pounds he  demonstrated  severe
scapular  winging,1 and could lift thirty-five pounds  above  his
shoulders.   He  was certified for medium work.   The  evaluation
also  noted  that Devon had no strength above his  shoulders  and
that his neck could not take any impact.  Sometime after the  PCE
Devon  was  referred by his surgeon, Dr. Louis  Kralick,  to  Dr.
Michael  Gevaert for a permanent partial impairment (PPI) rating;
Dr. Gevaert conducted the evaluation in November 2000.  Based  on
pain  and decreased shoulder mobility, the shoulder surgery,  the
prior  neck  surgery,  and  related  nerve  damage,  Dr.  Gevaert
assigned  Devon  a  PPI  rating of  twenty-seven  percent.2   The
municipality  paid  Devon $36,500 based  on  this  rating.3   Dr.
Gevaert agreed that Devon could return to medium work, but  noted
that  he  risked reinjury if he was exposed to vibration.   Devon
returned to work on January 14, 2001.
          After  ten  days  of work, on January 24,  2001,  Devon
reported  neck pain from the vibration associated with  operating
the  grader.   The  same  day  Devons  request  for  reemployment
benefits  was  denied.  Within a few days,  Devon  requested  and
obtained notes from Drs. Gevaert and Kralick that restricted  him
from  operating the grader but allowed him to operate other heavy
equipment.   Based  on  these  notes, the  Reemployment  Benefits
Administrator  reconsidered Devons application  and  granted  him
reemployment  benefits  on February 8, 2001.   According  to  the
municipality,   Devon  was  paid  $16,500  in   temporary   total
disability  (TTD) benefits from January 24, 2001 until  June  30,
2001.  He was placed on annual sick leave until March 2001,  when
          the municipality terminated him.
          Devon  filed a claim for workers compensation  benefits
based  on  the  injuries  to his neck and spine  sustained  while
operating the grader in January 2001.  An evaluation done by  the
municipalitys physician, Dr. Thad Stanford, in May 2001 concluded
that  Devon  was unable to operate a grader due to his  injuries.
Dr.  Stanford  recommended further evaluation of Devons  shoulder
injuries.   On June 18, 2001 Dr. Douglas Savikko examined  Devon;
he  observed significant weakness and loss of mobility in  Devons
right  arm  and shoulder and noted that the vibration  associated
with  operating a grader would cause pain in his neck  and  upper
back.   He  recommended  reassignment to a  less  traumatic  work
detail.
          The  municipality  hired a private  investigation  firm
which  filmed Devon engaging in various activities  in  June  and
July  of  2001  that  seemed  inconsistent  with  his  claims  of
debilitating  shoulder pain.4  Without telling  Devon  about  the
tapes,  the  municipality deposed him in October  2001.   At  the
deposition  Devon  repeated  his claims  of  elbow  and  shoulder
problems,  noting  that he had limited mobility  and  significant
pain in his right arm and shoulder.  Specifically, he stated that
if  he  tried to straighten his right elbow he would drop to  the
floor  reeling in pain, and that when his elbow was straightened,
the pain was excruciating.  He also said he was unable to throw a
football or use his arms to pull a sled behind him.  Overall,  he
denied  engaging in any physical activities other  than  being  a
Girl  Scout leader, and noted that even hugging his children  was
painful.   However, Devon agreed that he rode  a  motorcycle  and
possessed  a  commercial drivers license (CDL).  He also  related
that  he  regained some mobility in his right arm when medicated,
but noted that the gains were limited.
          Upon  reviewing  the  tapes, Dr. Stanford  changed  his
opinion.   Dr. Stanford stated that after viewing the  activities
he  did not see any impairment.  He therefore concluded that  the
January   2001   cervical  injury  only  resulted  in   temporary
aggravation of Devons neck and shoulder problems and that it  was
more  likely  than  not that he has been medically  stable  since
roughly the end of January of 2001.5
          Dr.  Gevaert also viewed the surveillance tapes and  he
later testified about them in front of the board.  He noted  that
some of the activities, such as pulling the harrow, were somewhat
unusual, but not inconsistent with either his evaluation  or  Dr.
Savikkos  June  2001 evaluation.  However, he felt that  overall,
the difference between Devons condition at the Savikko evaluation
and  his  videotaped abilities was highly unusual.   Dr.  Gevaert
observed  that  Devon  reported  that  his  shoulder  showed   no
improvement in early 2001, and that his medical records show that
it had worsened by the June 19 Savikko evaluation, but then noted
that Devon displayed full use of his shoulder and no evidence  of
pain  when  videotaped  playing softball  nine  days  later.   He
characterized this improvement as very dramatic and  stated  that
Devons  ability  to engage in these activities  without  evincing
pain  or  reduced  mobility was striking.  Dr. Gevaert  concluded
that  Devons 2000 PPI was [p]robably not accurate and agreed that
          Devon had misrepresented his physical condition to his doctors.
However, when questioned by Devons counsel, Dr. Gevaert said that
he   could  not  say  that  Devon  lied  to  him  or  consciously
misrepresented  his  condition in  November  2000.   Dr.  Gevaert
further stated that he could not say that it was more likely than
not  that  Devons PPI rating was incorrect.  But on rebuttal  Dr.
Gevaert  offered contradictory testimony.  First, he agreed  that
it was more likely than not that the November 2000 PPI rating was
incorrect because it undercounted Devons range of motion  in  his
shoulder, and said that this error made Devons PPI score four  to
seven  percent  higher  than it should  have  been.   Second,  he
admitted  that  he  suspected  Devon  of  a  certain  degree   of
malingering.
          Dr.  Gevaert also noted that Devon had been taking  the
pain  relievers  Percocet and Oxycontin but was  unaware  whether
Devon had taken them before his November 2000 evaluation.  And he
admitted that medication could lead to some improvement and  that
it  was  possible,  albeit unlikely, that narcotics  could  allow
someone  with  Devons  level of injury to  engage  in  the  taped
activities without showing pain or discomfort.  He also said that
if  someone were to have a normal recovery, then they could  have
demonstrated Devons level of injury at the November 2000 exam and
still engaged in the activities on the tape (which took place six
months later) without pain or medication.
          Devon  also testified in front of the board,  admitting
that   the  tapes  seemed  pretty  damning.   He  explained   the
difference  between his November 2000 PPI and the  activities  on
the  tapes by claiming that he had not been medicated when he was
examined  by  Dr. Gevaert and that he was able to  do  more  when
medicated.  He suggested, but did not explicitly state,  that  he
was  on  medication when he was videotaped.6  Finally, he  agreed
that his answer in the October deposition that he could not throw
a ball was if not false . . . a distortion of the truth.
     B.   Proceedings
          Based  on  the surveillance tapes and Devons deposition
testimony,  the  municipality filed a petition  with  the  Alaska
Workers Compensation Board seeking reimbursement of PPI benefits,
TTD  benefits from January to June of 2001, reemployment benefits
and associated costs and attorneys fees.  The municipality argued
that Devon had fraudulently obtained benefits in violation of  AS
23.30.250(b)7  by lying about the extent of his injuries  and  by
failing to inform his vocational counselor that he had driven  an
eighteen-wheel tractor-trailer in a previous job.   It  requested
reimbursement  under  subsection .250(b), modification  under  AS
23.30.1308  of Devons eligibility for reemployment benefits,  and
referral of the case to the District Attorneys office.
          In  regard  to  the PPI benefits, the board  held  that
Devons videotaped activities were explainable as either being not
inconsistent  with the November 2000 PPI rating or possible  with
pain medications.  The board found Dr. Gevaert to be sincere  but
noted  that his testimony was at times incongruous and held  that
when  considered  as a whole, his testimony did not  support  the
municipalitys claim.  The board noted that there was  a  lack  of
significant   inconsistency  between   the   employees   physical
          abilities at the July 11, 2000 PCE and the activities in the
videotapes,  and  noted that this also refuted the  municipalitys
claims of knowing misrepresentation.
          As  to  the  TTD  benefits, the board  highlighted  Dr.
Gevaerts  testimony  that  he relied on  the  neck  condition  in
finding  Devon  to  be  unable to work on the  grader,  and  thus
concluded  that these benefits were properly awarded.  The  board
essentially held that, as Devons TTD benefits were based  on  his
neck   condition,  any  misrepresentations  about  his   shoulder
condition were immaterial.
          In  regard to the reemployment benefits, the board held
that the municipalitys claim that Devon tried to conceal that  he
had  driven a truck were baseless and declined to amend the award
of  reemployment benefits because Devon listed  his  CDL  on  his
résumé  and  told  the vocational counselor that  his  prior  job
involved driving a truck.
          Finally,  the  board declined to refer  the  matter  of
Devons  misrepresentations for criminal  prosecution.    Although
the  board  noted that there were troubling problems with  Devons
testimony,  it  held that he did not knowingly  misrepresent  his
condition  at  the October deposition because,  while  he  denied
being  able  to  throw  a ball, he noted that  he  retained  some
capabilities in that arm.  The board also relied on Dr.  Gevaerts
testimony, which it said revealed that Devon likely could throw a
softball if medicated.
          The municipality appealed this decision to the superior
court, arguing that the board lacked substantial evidence for its
conclusions, applied the incorrect legal standard of  proof,  and
improperly  admitted  certain medical  records.   Superior  Court
Judge William F. Morse affirmed on all counts.  Judge Morse  held
that the board properly applied the preponderance of the evidence
standard, as required by this court in DeNuptiis v. Unocal Corp.9
He  also found that there was substantial evidence to support the
boards  decision, citing its conclusion that Dr. Gevaert did  not
change his PPI rating after viewing the tapes, the fact that  the
TTD  benefits  were based on the neck injury, and the  fact  that
Devon told the vocational counselor he had driven a truck at work
and  that he possessed a CDL.  Finally, Judge Morse rejected  the
municipalitys  argument  regarding the medical  records,  holding
that even if the records were improperly admitted, any error  was
harmless because the board did not rely upon the reports  in  its
decision.
III.      STANDARD OF REVIEW
          We independently review the merits of an administrative
decision when the superior court acts as an intermediate court of
appeals.10   In reviewing the boards decision, we review  factual
findings  to ensure they are supported by substantial evidence.11
Substantial  evidence is defined as such relevant evidence  as  a
reasonable mind might accept as adequate to support a conclusion.12
However,  we  do  not  reweigh  the evidence  or  choose  between
competing  inferences;  we only determine whether  such  relevant
evidence  exists.13   Determining  witness  credibility  is  left
entirely to the board.14
          We   review   the   boards  decisions   regarding   the
          admissibility of evidence for an abuse of discretion.15  We find
an  abuse  of  discretion exists only if we  are  left  with  the
definite and firm conviction that a mistake has been made.16
IV.  DISCUSSION
     A.   The  Boards  Decision that Devon Did  Not  Fraudulently
          Obtain Workers Compensation Benefits Was Not Erroneous.
          
          The  municipality  bore  the burden  of  proving  by  a
preponderance of the evidence that Devon knowingly made false  or
misleading  statements  for  the  purpose  of  securing   workers
compensation  benefits.17  Alaska Statute  23.30.250(b)  requires
repayment  of  employment benefits when  a  person  has  obtained
compensation,  medical  treatment, or  another  benefit  provided
under  this  chapter  by knowingly making a false  or  misleading
statement  or for the purpose of obtaining that benefit.  .  .  .
(Emphasis  added.)  The board applies a four-part test for  fraud
claims.   The  employer  must show that: (1)  the  employee  made
statements or representations; (2) the statements were  false  or
misleading; (3) the statements were made knowingly; and  (4)  the
statements resulted in the employee obtaining benefits.18  As  it
comports  with  the language of AS 23.30.250(b),  we  adopt  this
test.  Thus, to succeed in this appeal the municipality must show
that the board lacked substantial evidence to conclude that Devon
did   not  secure  workers  compensation  benefits  through  such
statements or actions.
          1.   Substantial  evidence supports the boards  finding
               that   Devon  did  not  fraudulently  obtain   PPI
               benefits.
               
          PPI  benefits were awarded as a result of Dr.  Gevaerts
PPI  rating in November 2000.  Accordingly, the critical question
is  whether  Devon obtained excess PPI benefits by  intentionally
misleading  Dr. Gevaert in November 2000 when the PPI  evaluation
was  conducted.   The  board  concluded  that  the  municipalitys
surveillance  tapes  were  not  compelling  evidence  that  Devon
engaged  in  fraudulent behavior.  This conclusion was  based  on
three key findings: (1) that nearly all of the activities on  the
videotapes were explained away by Dr. Gevaert as not inconsistent
with the November 2000 PPI rating; (2) that Dr. Gevaert testified
that  Devons  range  of  motion would  have  been  improved  with
medication and that Devon testified that he took medication  when
he  engaged  in  physical activities; and (3)  there  was  little
inconsistency between Devons physical abilities at the July  2000
PCE  and  the videotaped activities.  The municipality  maintains
that  the surveillance tapes and Dr. Gevaerts testimony show that
Devon  fraudulently secured benefits, and thus  argues  that  the
boards  conclusion is not supported by substantial evidence.   As
explained below, we disagree.
               (a)  Dr.  Gevaerts  testimony as to  the  November
                    2000 evaluation
                    
          As  noted  above,  the  board was faced  with  deciding
whether  Devon  obtained  excess PPI  benefits  by  intentionally
misleading  Dr. Gevaert in November 2000, when the PPI evaluation
was  conducted.   The board relied on Dr. Gevaerts  testimony  in
          concluding that [n]early all of the videotaped activities were
not  inconsistent with the November 2000 evaluation.   The  board
specifically  referred to his testimony that  dragging  a  screen
across the infield of a softball field was not inconsistent  with
the  earlier evaluation.  While Dr. Gevaert testified that  Devon
likely  misrepresented  his condition to  the  other  doctors  in
spring of 2001, he did not testify that Devon misrepresented  his
symptoms  in  November 2000.  The board relied  on  Dr.  Gevaerts
testimony  that he was unable to say whether Devon  intentionally
misrepresented  his condition at the November 2000  evaluation.19
Although  later  portions  of  his testimony  could  be  read  as
contradicting this statement,20 the board was entitled to rely on
his   earlier  testimony  that  he  could  not  say  that   Devon
misrepresented his condition in November 2000.  It is significant
that there was a six-month gap between the November 2000 PPI  and
the  municipalitys surveillance.  As Dr. Gevaert stated, a person
who  recovered  normally could have engaged in the activities  on
the   tape   without  pain.   Thus,  even  if   Devon   lied   or
misrepresented   the  fact  that  his  shoulder  was   recovering
throughout 2001, it is possible that he was not exaggerating  his
condition at the time of the PPI evaluation.
               (b)  Dr.   Gevaerts   testimony  concerning   pain
                    medication
          The  board  relied on Dr. Gevaerts testimony that  pain
medication  could have affected Devons ability to engage  in  the
activities  shown  on the videotape.  The doctor  testified,  for
example, that carrying several soccer balls in a bag as Devon did
in  the videotape would be possible if the person had taken  pain
medication.  The board accepted Devons testimony that he had  not
taken  pain medication before the PPI evaluation but that he  did
take  pain  medication before engaging in physical activities  of
the  type shown in the surveillance tapes.  The board also relied
on Dr. Gevaerts testimony that Devon would have a better range of
motion when medicated.21
               (c)  Consistency   between  July  2000   PCE   and
                    videotaped activities
                    
          The  board  lastly  relied on  a  lack  of  significant
inconsistency between Devons condition as shown in the July  2000
PCE and his activities shown in the videotapes.  At the July 2000
PCE  Devon  was  able to push and pull up to 400  pounds  without
complaining of pain, was able to lift and manipulate  weights  of
up  to thirty-five pounds over his shoulder, and was able to lift
a  weight  of  forty pounds to his shoulder height.  Dr.  Gevaert
stated that all of this was consistent with what was shown on the
videotape.22  While Dr. Gevaert was careful to point out  that  a
physical  capacities  evaluation is undertaken  for  a  different
purpose than a permanent partial impairment rating, the board was
entitled to rely on the similarities in Devons condition in  July
2000 (as shown in the PCE) and in June-July 2001 (as shown in the
videotapes)  to support its conclusion that the municipality  had
not established a case of misrepresentation.
               (d)  Conclusion
          The  boards finding that the municipality did not  show
          by a preponderance of the evidence that Devon obtained benefits
by making knowing misrepresentations was not clearly erroneous.23
Like  the  board,  we  note that Devons testimony  certainly  has
troubling aspects.  And it is not unthinkable that upon  de  novo
review,  we would be less inclined to credit the testimony  of  a
witness  who admitted that he made statements about his  physical
capabilities that were if not false, a distortion of  the  truth,
who  had  previously been convicted of dishonesty, and  who  lied
about  being  a  member  of  a workers  union  in  a  deposition.
However,  in this situation, we are bound by both the deferential
standard of review that we apply to the boards decisions  and  by
statute; AS 23.30.122 states that [t]he board has the sole  power
to  determine the credibility of a witness. (Emphasis added.)  It
may well be that [e]very violation of truth is not only a sort of
suicide  in  the  liar,  but is a stab at  the  health  of  human
society.24   But given the standard of review, we are  unable  to
usurp  the role of the board and consider whether such a wounding
has occurred.
          2.   Substantial  evidence supports the boards  finding
               that   Devon  did  not  fraudulently  obtain   TTD
               benefits.
          The  municipality also argues that the boards  decision
to dismiss its claim that Devon fraudulently secured TTD benefits
was  not supported by substantial evidence.  The board noted that
the  TTD benefits were based on Devons inability to withstand the
vibration  associated with operating a grader, and Drs.  Gevaert,
Savikko, and Kralick cited Devons cervical problems as the reason
for limiting his exposure to vibration.  Dr. Stanford changed his
view  of  Devons  neck injury after viewing the  tapes,  but  Dr.
Gevaert  declined  to do so, noting that any  error  in  shoulder
mobility  was  unrelated to his decision  to  excuse  Devon  from
operating  the  grader.  Even if Devon was untruthful  about  his
shoulder  injury,  that misrepresentation  did  not  increase  or
affect TTD benefits paid for the neck injury.  Thus, Dr. Gevaerts
testimony  provides substantial evidence for the boards  judgment
on the TTD benefits.
          3.   Substantial  evidence supports the boards  finding
               that    Devon   did   not   fraudulently    obtain
               reemployment benefits.
               
          The  municipality argues that Devon is not entitled  to
his reemployment benefits because he was not entirely candid with
Elisa  Hitchcock, his vocational specialist.   He  was  asked  to
supply  her with a list of all jobs he had held in the  last  ten
years,  and  she testified that he did not list commercial  truck
driver  as  one  of  his past occupations.   Thus,  she  did  not
consider  this  job when looking for alternative  employment  for
Devon  and  testified  that she could have found  Devon  a  truck
driving   job  had  she  known  this  information  sooner.    The
municipality  argues  that  it  could  have  avoided  $11,000  in
reemployment  benefits.   However, this  argument  fails  because
there  was  sufficient evidence for the board  to  conclude  that
Devon  did  not knowingly mislead Hitchcock.  Hitchcock testified
that  Devon gave her a copy of his CDL and informed her  that  he
          drove a truck as part of his job.  The information provided by
Devon  seems to have been part of a good-faith effort  to  inform
the  counselor  of  his work experience, and examination  of  his
résumé  and  status as a CDL holder should have led Hitchcock  to
consider  truck driving as a possible job for Devon.   Therefore,
we  conclude  that there was substantial evidence to support  the
boards decision on this point.25
     B.   Any  Error in Admitting Various Medical Reports Without
          Allowing the Municipality To Cross-Examine the  Reports
          Authors Was Harmless.
          The municipality argues that the boards decision should
also  be  reversed  because it relied  on  medical  reports  from
doctors  who were not made available for cross-examination.   The
municipality  notes  that it was entitled  to  cross-examine  the
author of the reports under Commercial Union Cos. v. Smallwood,26
and  argues that because its request was not granted, the reports
were inadmissible.  It asks for reversal because the weight given
the reports cannot be gleaned from the boards decision.
          The   municipality  argues  that  these   reports   are
inadmissible  because  the  authors  were  not  Devons   treating
physicians, they were not selected by the municipality,  and  the
evaluation was not undertaken for the workers compensation claim.
However,  as  the  superior court pointed  out  in  its  decision
affirming  the  board  on this issue, the  municipality  did  not
object  to  introduction of the medical reports  of  two  of  the
doctors  and did not request an opportunity to cross-examine  the
third   doctor.   Since  the  municipality  did  not  object   to
introduction of the documents, Devon did not have the opportunity
to  establish  the requisite foundation.  Further, even  assuming
for  the  sake of argument that the board erred in admitting  the
reports, the municipality bears the burden of showing that it was
prejudiced  by the boards admission of these reports.27   We  are
unable to conclude based on the record that the reports admission
prejudiced the municipality.
          In  determining  whether  an  error  was  harmless,  we
examine whether it affected the final verdict.28  Factors relevant
to  this  determination include the relative amount  of  time  at
trial  devoted  to  the evidence29 and whether  the  inadmissible
evidence  was cumulative and largely replicated other  admissible
evidence.30   In  this case, the board heard no  testimony  about
these  reports.  Moreover, it only mentioned the reports  in  its
factual  summary;  its  substantive  discussion  focused  on  Dr.
Gevaerts  testimony, Devons testimony, and the  existing  record.
In addition, the information in the contested reports essentially
restated evidence already in the record.31  We conclude that  the
municipality  has  not  met its burden of  showing  that  it  was
prejudiced by the boards admission of the reports.  Thus, even if
the  board erred in admitting the reports, any error is  harmless
because it did not rely on the reports in its final decision.

V.   CONCLUSION
          Because  there was substantial evidence to support  the
boards findings that Devon did not fraudulently secure PPI,  TTD,
or  reemployment benefits and because any error in the  admission
          of medical reports not subject to cross-examination was harmless,
we  AFFIRM  the  superior courts decision  upholding  the  boards
decision denying the municipalitys petition for reimbursement  of
benefits.32
_______________________________
     1     Scapular winging occurs when the scapula, or  shoulder
blade, protrudes away from the back.  This condition is caused by
paralysis  of  the  serratus anterior muscle.   Stedmans  Medical
Dictionary 1387 (25th ed. 1990).

     2     While  most of the rating was objectively  determined,
the portion of the PPI rating related to Devons shoulder mobility
and pain was based on Devons comments to Dr. Gevaert.

     3    Under former AS 23.30.190, PPI payments were determined
by multiplying the PPI percentage by $135,000.

     4    Specifically, investigators observed Devon:

          [R]iding   his  Harley  Davidson  motorcycle.
          Conducting physical labor maintaining a  ball
          field  including starting a pitching  machine
          with a rope starter using both arms, dragging
          a  wire  mesh harrow around the infield  with
          both  arms  behind his back and  lifting  the
          harrow over his head.  Subject was also taped
          raking  and  using  a wheel  barrow  and  was
          observed  lifting  heavy items.  Subject  was
          also  taped  playing softball  that  included
          activities   such   as   batting,   throwing,
          running, and catching a softball.
          
     5    Once an injured employee is medically stable, he or she
may   not  receive  temporary  total  disability  payments.    AS
23.30.185.    An  employee  is  medically  stable  once   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. . . .  AS 23.30.395(21).

     6                        Devon
                              did
                              not
                              expli
                              citly
                              admit
                              that
                              he
                              had
                              taken
                              medic
                              ation
                              befor
                              e  he
                              was
                              video
                              taped
                              .
                              Inste
                              ad,
                              he
                              said
                              that:
                              
          [W]hen I know that Im going to be doing  some
          physical  activity, I will medicate ahead  of
          time, because I know that it  that I wont  be
          able to do a lot of things if I dont. . . . I
          try  not to take the medication all the time.
          .  .  . I really dont want to be addicted  to
          any  narcotic  . . . and thats  probably  why
          there may be some inconsistencies . . . in my
          activity.
          
     7    AS 23.30.250(b) states in relevant part:

          If  the board, after a hearing, finds that  a
          person  has  obtained  compensation,  medical
          treatment, or another benefit provided  under
          this  chapter by knowingly making a false  or
          misleading  statement or  representation  for
          the  purpose  of obtaining that benefit,  the
          board  shall order that person to  make  full
          reimbursement  of the cost  of  all  benefits
          obtained.  Upon entry of an order  authorized
          under  this subsection, the board shall  also
          order that person to pay all reasonable costs
          and  attorney  fees incurred by the  employer
          and  the  employers carrier in  obtaining  an
          order under this section and in defending any
          claim made for benefits under this chapter.
          
     8      AS   23.30.130(a)  lists  various  grounds  for   the
modification  of a workers compensation award, including  mistake
of fact.

     9    63 P.3d 272, 277-78 (Alaska 2003).

     10    Cowen v. Wal-Mart, 93 P.3d 420, 424 (Alaska 2004).

     11     Id.
          
     12     Id. (quoting DeYonge v. NANA/Marriott, 1 P.3d 90,  94
          (Alaska 2000)).
          
     13    Id.

     14    Id.

     15    DeYonge, 1 P.3d at 94.

     16    Id.

     17    DeNuptiis v. Unocal Corp., 63 P.3d 272, 277-78 (Alaska
2003).

     18     See  Church v. Silver Bay Logging, Inc., No.  99-0139
(Alaska Workers Comp. Bd., June 24, 1999).

     19    Devons counsel and Dr. Gevaert engaged in the following
exchange:

          Q:   [A]re  you  saying, then, [in]  November
               2000 that Mr. Devon lied to you; that is
               consciously misrepresented his  physical
               capacities? Yes, no, or you cant say.
          A:   I cant say.
          Q:   Thank you.  Would you agree  and this is
               the  legal standard  that you cannot say
               to   a   reasonable  degree  of  medical
               certainty,  more likely than  not,  that
               Mr. Devons PPI rating of November 00  as
               of that date was wrong?
          A:   Thats correct, I cant say it was wrong.
               
     20     First, Dr. Gevaert agreed  that the November 2000 PPI
evaluation was more likely than not wrong.  Then, he admitted  to
suspecting  Devon  of  a  certain  degree  of  malingering.   And
finally, when asked whether he agreed with the statement that the
only  time  that Mr. Devon shows [a] reduced range of  motion  is
when  hes either with a doctor or in a deposition, and that  when
hes recreating there is no loss of motion, he responded: That  is
correct.

     21    Dr. Gevaerts testimony on this subject was not without
internal contradictions.  As noted by the municipality,  he  also
testified  that  while pain medication can reduce  the  pain  and
allow people to participate in certain activities, . . . it  wont
reduce  the  pain  completely so that we dont see  any  secondary
effects  of guarding for pain, of rubbing the shoulder, etc.   He
concluded  that  it was kind of unlikely that  Devon  could  have
engaged   in   all  of  the  activities  on  the  tapes   without
demonstrating any signs of pain.

     22     The only inconsistency noted by Dr. Gevaert was that,
in the videotape, Devon showed no indication of pain or guarding.

     23     The  municipality also argues that  the  board  erred
either  by  abdicat[ing]  its duty to  make  a  specific  finding
regarding  Devons  credibility or by relying on Devons  testimony
when,  in  the municipalitys view, Devon was wholly unbelievable.
The  board  accepted  Devons  testimony  that  he  did  not  take
medications  prior to the November 2000 evaluation and  found  it
plausible  that  he  self-medicated before engaging  in  physical
activities.   Although  not explicit,  this  reliance  on  Devons
testimony  demonstrates that the board found him to be  credible.
Cf.  Hoth v. Valley Constr., 671 P.2d 871, 874 n.3 (Alaska  1983)
(Absent  specific  findings  by  the  Board  that  it  chose   to
disbelieve a witnesss testimony, we will not assume that lack  of
credibility was a relevant factor in the Boards decision.).

     24     Ralph Waldo Emerson, Essay VII: Prudence, in Emersons
Essays 135 (Dent 1906) (1841).

     25     In  addition,  the municipality does  not  offer  any
evidence to show that Devon intentionally misrepresented his work
history.     Alaska  Statute  23.30.250(b)  requires   that   any
misrepresentation  or  falsehood  be  knowing.   Even  if  Devons
description of his work history was less than clear, the lack  of
intentionality also undermines the municipalitys argument.

     26    550 P.2d 1261 (Alaska 1976).  In Smallwood we held that
parties   have  a  right  to  cross-examine  authors  of  reports
submitted for review by the board.  Id. at 1265-66.

     27      Dobos v. Ingersoll, 9 P.3d 1020, 1024 (Alaska  2000)
(citing Zerbinos v. Lewis, 394 P.2d 886, 889 (Alaska 1964)).

     28     Wyatt  v. State, 981 P.2d 109, 115 (Alaska  1999)  (A
non-constitutional  error is harmless if it did  not  appreciably
affect the jurys verdict. ) (quoting Love v. State, 457 P.2d 622,
631-32 (Alaska 1969)).

     29    Dobos, 9 P.3d at 1024-25 (citing Alyeska Pipeline Serv.
Co. v. OKelley, 645 P.2d 767, 773 (Alaska 1982)).

     30    Jackson v. White, 556 P.2d 530, 534 n.13 (Alaska 1976)
(introduction  of hearsay evidence harmless error where  evidence
cumulative of other evidence).

     31    The contested evaluations noted that Devon had cervical
problems  stemming from his C6/C7 fusion, that he could  push  or
pull  unlimited  amounts of weight, that  he  displayed  scapular
winging,  and  that  he had limited lifting capabilities.   These
results are not significantly different from the results  of  the
July 2000 PCE.

     32    Devon also requests that this court grant him attorneys
fees  for  not only this appeal, but also for stayed  proceedings
regarding the amount of attorneys fees owed to him for the  fraud
hearing  and his appeal to the superior court.  However,  because
neither the board nor the superior court has issued a final order
on this point, it is not properly before us.