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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Thoeni v. Consumer Electronic Services (01/12/2007) sp-6090

Thoeni v. Consumer Electronic Services (01/12/2007) sp-6090, 151 P3d 1249

     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

MARY I. THOENI, )
) Supreme Court No. S- 11897
Appellant, )
) Superior Court No.
v. ) 3AN-02-12246 CI
)
CONSUMER ELECTRONIC )
SERVICES, et al., ) O P I N I O N
)
Appellees. ) No. 6090 - January 12, 2007
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Morgan Christen, Judge.

          Appearances: Mary I. Thoeni, pro se, Wasilla.
          Timothy A. McKeever, Holmes Weddle & Barcott,
          P.C., Anchorage, for Appellees.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          Mary  Thoeni  was injured in a fall while  at  work  in
2000.   She continues to be paid benefits for the resulting  knee
injury,   but  the  Alaska  Workers  Compensation  Board   denied
compensation  for  other  claimed  injuries  and  upheld  several
controversions   of   her   benefits.    Thoeni   appeals   these
determinations.  Because all but two are supported by substantial
evidence, we affirm the board as to those decisions.  As  to  the
remaining  issues  whether Thoeni should forfeit  benefits  as  a
result of her refusal to attend a medical examination and whether
her  knee was medically stable between November 2000 and  January
2001  we hold that the board erred and therefore reverse.
II.  FACTS AND PROCEEDINGS
     A.   Facts
          Mary  Thoeni  worked  as  an  electric  technician  for
Consumer  Electronic Services (CES) in Anchorage.  In March  2000
she  was carrying a cable television converter box . . . when she
tripped  and  landed on her outstretched hands  and  knees.   The
injury  was  reported  to the Alaska Workers Compensation  Board.
Thoeni  was  treated  initially by Drs. Robert  Myers  and  David
McGuire  in Anchorage.  CES accepted Thoenis workers compensation
claim;   its   workers  compensation  carrier,  Alaska   National
Insurance Company, began paying temporary total disability  (TTD)
benefits the day after Thoenis fall.
          Thoeni  sought  treatment  from  Dr.  Robert  Hall   in
Anchorage  in  May;  Hall ordered an MRI  and  physical  therapy.
Thoeni  reported problems with the physical therapy.  Stating,  I
dont see anything else that we could offer this patient, Dr. Hall
referred Thoeni to Dr. Shawn Hadley, who in turn referred  Thoeni
to  Dr. Bret Mason, an orthopedist.  Mason performed arthroscopic
surgery  in August 2000 and released Thoeni to return to work  as
of October 2000.
          Thoeni  returned  to work but began experiencing  chest
pain.   She  saw  Dr. Dwayne Trujillo in Anchorage regarding  the
chest  pain.   Dr. Trujillo diagnosed costochondritis  and  noted
that the symptom pattern suggests an overuse or repetitive stress-
type injury etiology.1  Even though Dr. Mason indicated that  the
knee injury and chest pain were unrelated, Thoeni filed a workers
compensation  claim  on  the  costochondritis  as  a   continuing
manifestation of her knee injury, and CES accepted the claim  and
paid TTD benefits.
          CES  asked  Thoeni  to attend an employers  independent
medical examination (EIME)2 in Sandy, Utah, on January 25,  2001.
Thoeni  refused  to travel from Miami  where  she  had  moved  in
December  2000   to  Utah for the examination.   While  in  Miami
Thoeni  saw Dr. Jose Jaen, who recommended additional surgery  on
her  knee.   Thoeni  moved to Alabama shortly thereafter  and  on
February 21, 2001 attended an EIME in Montgomery conducted by Dr.
Roland  Rivard.  Thoeni had another knee surgery in  April  2001,
performed by Dr. James Armstrong in Montgomery.  When Dr.  Rivard
saw  Thoeni in September 2001 he stated that Thoeni had a partial
permanent impairment rating of two percent for her left knee.  He
also stated, It does not appear to me that the chest pain .  .  .
was . . . relat[ed to] the injury to her knees.
          In  September  2001  Thoeni filed workers  compensation
claims  for  depression and insomnia.  The  claims  alleged  that
these  illnesses  were  a continuing manifestation  of  her  knee
injury.    Thoeni   subsequently  attended  independent   medical
examinations  by Drs. Robert Barth and Judith Weingarten.   Barth
indicated  that  a  strong  suspicion of  malingering  should  be
adopted,  and  reported  that the results  of  this  consultation
process provided significant evidence that any mental illness  is
not attributable to her claim of work-related injury.  Barth also
said  it can be stated definitively that Ms. Thoenis presentation
would not allow anyone to credibly conclude that her presentation
of  mental  illness is attributable to the March  27,  2000  work
          injury.  Weingarten was unsure whether to diagnose depression,
but  stated,  In  my opinion, to a reasonable degree  of  medical
certainty,  none of these psychiatric diagnoses would be  related
to  a  work  injury or injuries at Consumer Electronic  Services.
CES  then  controverted Thoenis claim for benefits on the  mental
illnesses.
          Throughout the claims process CES controverted  Thoenis
benefits  multiple  times, chiefly for failure  to  sign  medical
releases.  CES also controverted her benefits for a period due to
her  refusal  to  attend the January 2001  examination  in  Utah.
After  a  second independent medical examination3 in  April  2002
indicated   that   Thoeni  could  return  to  work   after   some
improvement,  CES  controverted her  knee4  and  chest  benefits.
Thoeni now resides in Wasilla.
     B.   Proceedings
          1.   The Alaska Workers Compensation Board hearing
          In September 2002 the Alaska Workers Compensation Board
held a hearing on Thoenis claims.  As to Thoenis knee injury, the
board  found  that  Thoeni  had established  the  presumption  of
compensability,5 that CES had rebutted the presumption, and  that
Thoeni had proven by a preponderance of the evidence that she  is
entitled  to continued medical benefits for her knee.  The  board
held  that Thoeni was entitled to select a new doctor,  and  that
she  was entitled to treatment with a knee brace so long  as  the
treatment  was obtained in Alaska.  The board found that  Thoenis
knee  was  no  longer medically stable once Dr. Jaen  recommended
surgery in January 2001,  and that she was therefore entitled  to
TTD  benefits from that date until medical stability was reached.
The  board  found  that  Thoeni  had  initially  reached  medical
stability  in October 2000 and thus was not entitled to  benefits
between that time and Dr. Jaens recommendation.
          As to Thoenis costochondritis, the board found that she
had  met  the  presumption of compensability  but  that  CES  had
rebutted the presumption and that Thoeni had not proven her claim
for  additional  medical  benefits  by  a  preponderance  of  the
evidence.  The board found that Thoenis costochondritis was work-
related   but that the preponderance of the evidence  shows  that
[Thoenis] costochondritis has in fact resolved. Accordingly,  the
board   denied   her   claim   for   additional   benefits    for
costochondritis.
          The  board found that Thoeni also failed to prove by  a
preponderance of the evidence her entitlement to medical benefits
for  her  depression and insomnia.  The board  found  that  these
illnesses  were  not  work related and therefore  denied  Thoenis
claim.   The board stated, We find the reports of Dr.  Barth  and
Weingarten  to  be  more convincing and credible.  It  considered
reports  by  two  doctors,  Dr. William  Freeman  and  Dr.  Daryl
Hamblin, who had briefly seen Thoeni in July 2001, but gave  them
less weight.
          The  board  denied  Thoenis  claim  for  transportation
costs,  finding  that Thoeni had produced no evidence  of  unpaid
expenses  and  therefore had failed to raise the  presumption  of
compensability.   The  board denied Thoenis claim  for  penalties
under  AS  23.30.155, finding CESs controversions to be based  on
          valid legal or medical evidence.  The board awarded interest
under  8  AAC 45.142(a) and 8 AAC 45.142(b)(3) on any  previously
unpaid  TTD benefits.  The board denied Thoenis claims  that  CES
had frivolously or unfairly controverted her benefits.  The board
found  that CES had controverted on the bases of Thoenis  failure
to  sign  releases,  reports of her medical  stability,  and  her
refusal  to attend the EIME in Utah.  The board stated,  We  have
examined  the  controversion notices filed by the  employer,  and
find a rational basis exists for each of them in this case.   The
board  stated  it  was  unable to determine  whether  Thoeni  was
entitled  to  pro  se legal costs and ordered her  to  submit  an
itemization.
          2.   The boards order on reconsideration
          CES  filed  a petition for reconsideration in  November
2002.   The  board granted the petition in part.   It  held  that
Thoeni  had  forfeited some benefits by refusing  to  sign  valid
medical  releases.  It also held that Thoenis failure  to  attend
the   Utah   medical  examination  was  unexcused  and  therefore
forfeited  her benefits from January 25, 2001, the date  of  that
examination, until she saw Dr. Rivard in Alabama on February  21,
2001.   The  board denied the parties requests to reconsider  its
remaining findings.
          3.   The superior court proceeding
          Thoeni appealed the boards order to the superior court.
Judge  Morgan Christen issued her ruling on March 17, 2005.   The
court in large part affirmed the boards ruling on the basis  that
substantial evidence existed for the findings or that Thoeni  had
not  raised  issues  before the board.  The  court  reversed  the
boards  holding  on  the stability date of Thoenis  knee  injury,
holding  that  there  was not substantial  evidence  for  medical
stability for the period from October 9 to November 2, 2000.  The
court  also reversed the boards finding that Thoeni had forfeited
benefits  by  failing to sign releases, holding that the  finding
was  not  supported by substantial evidence.  On reconsideration,
the  court  clarified that its holding on the  medical  stability
issue  did not necessarily mean that Thoeni was entitled  to  TTD
benefits for that period.  The court remanded these issues to the
board.  Thoeni appeals from the superior courts ruling.
III. STANDARD OF REVIEW
          When  the superior court acts as an intermediate  court
of   appeals,  we  independently  review  the  decision  of   the
administrative agency.6  If the parties raise a question  of  law
that  does  not involve special agency expertise, we  review  the
question under the substitution of judgment standard.7  Under the
substitution  of  judgment  standard, we  apply  our  independent
judgment  and  adopt the rule of law that is most  persuasive  in
light of precedent, reason and policy.8  Agency determinations of
fact   are   reviewed  for  substantial  evidence.9   Substantial
evidence  is  such relevant evidence as a reasonable  mind  might
accept  as  adequate  to  support a  conclusion.10   The  workers
compensation  board  has  exclusive  authority  to   decide   the
credibility of witnesses.11  The boards exercise of its discretion
is  reviewed for abuse; an abuse of discretion occurs if  we  are
left  with  a  definite  and firm conviction  that  the  decision
          reviewed was a mistake.12
IV.  DISCUSSION
     A.   We Treat Thoenis Appeal as a Petition for Review.
          
          Under  Alaska Appellate Rule 202 an appeal may only  be
taken from  a final judgment of the court below.  We held in City
and  Borough  of  Juneau v. Thibodeau13 that there  is  no  final
judgment when a matter is appealed from an administrative  agency
to  the  superior court and the court remands one or more of  the
issues on appeal to the agency.14  We also held, however, that in
certain  circumstances  we  may choose  to  treat  an  improperly
brought  appeal  as  a petition for review in  order  to  prevent
hardship and injustice.15  Moreover, we have stated that treatment
as  a  petition  for review is warranted if present  review  will
materially  advance the ultimate termination of the litigation.16
Similarly, Alaska Appellate Rule 402(b)(1) provides that  we  may
grant review if to do otherwise would result in injustice because
of  impairment of a legal right, or because of unnecessary delay,
expense, hardship or other related factors.
          Thoenis  appeal in the superior court resulted  in  the
remand of two issues to the board: whether Thoeni was entitled to
TTD  benefits  from  October 2 to November 9,  2000  and  whether
Thoenis alleged refusal to sign medical releases was a basis  for
benefit forfeiture.  Since part of the case was remanded  to  the
administrative  agency,  under Thibodeau  Thoeni  has  improperly
brought her appeal from the judgment of the superior court.   The
issues  remanded, however, are a small and discrete part  of  the
entire  dispute,  and we are persuaded that reaching  the  merits
will   materially  advance  the  ultimate  termination   of   the
litigation.   Accordingly, we see no reason to  delay  this  case
further or to require the parties to prepare the appeal a  second
time.  We therefore treat Thoenis appeal as a petition for review
and  grant  the  petition in order to reach  the  merits  of  the
litigation.
     B.   The  Boards  Order Forfeiting Benefits Due  to  Thoenis
          Refusal To Attend the EIME Was an Abuse of Discretion.
          
          Thoeni argues that the board erred in determining,  and
the  superior court in affirming, that she had no excuse for  her
refusal  to  travel  from  her  home  in  Miami  to  attend   the
examination  in  Utah  in  January  2001.   The  examination  was
cancelled after her refusal.  Under Alaska law, CES had  a  right
to  require  the examination, and the board had the discretionary
authority to order forfeiture of benefits.17  The board found that
Thoeni  had  recently  traveled by herself when  she  moved  from
Anchorage  to  Miami,  and  held  that  her  refusal  to   travel
unassisted was unwarranted.  The board stated that certainly  the
employee  could have sought the assistance of the  airlines,  cab
drivers,  and  hotel  personnel in handling her  luggage  at  the
various locations.  The board found that the employer could  have
found  a  physician in Florida to conduct the EIME but  that  the
employers  statutory  ability to select  its  physician  for  the
examination meant that the selection did not have to be based  on
what  is  the most convenient location for the employee.   Thoeni
          distinguishes the two trips on the basis that the trip to Utah
would  require an overnight stay in a hotel, whereas she was  met
by  and lodged with a relative upon her arrival in Miami.   Thus,
while Thoeni made the trip to Miami alone, she was not alone once
she arrived in Miami.
            The  board  erred  when it found Thoenis  refusal  to
attend   the  Utah  examination  to  be  unexcused.   The   board
acknowledged that a physician could have been found  in  Florida.
Even  though, as the board states, the employer does not have  to
select the examining physician to be the most convenient for  the
employee,  this  does  not  mean that the  employees  convenience
should  be completely discounted.  The statute provides that  the
employer may request examinations at reasonable times.18  Although
the  statute  does not make any comment on where the  examination
takes place, its requirement of a reasonable time indicates  that
the legislature intended some consideration of the employees ease
in   attending   the   examination.   Furthermore,   the   boards
regulations  on selection of physicians for a second  independent
medical  evaluation   when the board, rather than  the  employer,
makes the selection   explicitly direct that the proximity of the
physician  to  the employees geographic location  be  taken  into
account.19   Other jurisdictions have held that even  intra-state
travel can be unreasonable depending on the circumstances of  the
case.20  Requiring Thoeni to travel 2500 miles from her home  was
manifestly  unreasonable.   The  boards  decision  that   Thoenis
refusal   was   unreasonable  is  not  supported  by  substantial
evidence.  Accordingly, the board abused its statutory discretion
when  it  determined that Thoeni should forfeit her benefits  for
the period during which she refused to attend an examination.  We
reverse  the  boards  determination that  Thoeni  should  forfeit
benefits for the period from January 25 to February 21, 2001.
     C.   Substantial Evidence Does Not Support the Finding  that
          Thoenis Knee Was Medically Stable Between November 2000
          and January 2001.
          
          Thoeni  challenges  the  finding  that  her  knee   was
medically stable from November 2, 2000 to January 25, 2001.21  It
is   the   employers   burden  to  prove   noncompensability   by
substantial evidence.22  Here, the employer sought to  show  that
Thoeni  had reached medical stability and hence was not  entitled
to  further  benefits.23  Thoeni argues that she had not  reached
medical stability by November 2 and alleges further that her knee
was  re-injured in November 2000 and again in early January 2001.
Accordingly,  she  argues,  she should  not  have  been  declared
medically  stable  because she not only  failed  to  improve  but
suffer[ed]  deterioration and additional injury.  On appeal,  CES
does  not  advance  any argument in support  of  the  finding  of
medical  stability from November 2 to January 25.  It is to  this
period that we turn our attention now.
            The  finding of medical stability was based primarily
on  Dr.  Masons  report of November 2, 2000, which contained  the
prediction that he did not expect any major changes in  the  next
45  days . . . .  The finding of medical stability was also based
on  Dr.  Hadleys report of early December in which  he  indicated
          that Thoenis knee was capable of improvement with a diligent
exercise  regime.24  Dr. Hadleys prediction that  exercise  would
result  in improvement, like Dr. Masons prediction that the  knee
would  not  deteriorate, proved incorrect. By the time the  board
determined  medical stability, it knew that Dr. Masons prediction
of  no significant changes within forty-five days and Dr. Hadleys
prediction that Thoeni would be medically stable with a  diligent
exercise program were incorrect.  It also knew that another  knee
surgery to improve the knee was recommended on January 25,  2001.
It knew this because of Dr. Jaens report.
            Dr.  Jaens  letter of December 14 reports  that  Mrs.
Thoeni reveals that she has continued to present medial knee pain
in  spite of surgery and these symptoms have in fact increased in
intensity in recent weeks.  Dr. Jaen stated that he would attempt
further  conservative  treatment but  that  if  intense  symptoms
persist  then  arthroscopic surgery will be  indicated.   Indeed,
another  surgery to improve the knee was recommended  on  January
25,  2001 and performed in April 2001.  Thus, the board knew that
Dr. Masons and Dr. Hadleys predictions proved incorrect.
          In  a  similar case, we reversed a finding  of  medical
stability where a prediction of medical stability turned  out  to
be  incorrect.   In  Wallaston v. Schoreder Cutting  Inc.,25  the
boards  conclusions were based on predictive  testimony  about  a
workers recovery that proved to be incorrect.26  Similarly, in the
instant  case the predictions of Dr. Mason and Dr. Hadley   which
proved to be incorrect  were not substantial evidence upon  which
the  board  could  reasonably conclude that Thoeni  had  achieved
medical  stability.   Accordingly, we reverse  the  determination
that  Thoeni had reached medical stability from November 2,  2000
to January 25, 2001.
          D.   The Boards Finding that Thoeni Had Failed To Prove
               the    Need   for   Further   Treatment   of   her
               Costochondritis  Was  Supported   by   Substantial
               Evidence.
               
          The  board found that Thoeni had failed to prove  by  a
preponderance of the evidence that she was entitled to continuing
medical  benefits  for costochondritis.27   From  the  record  it
appears  that the board based its decision on Dr. Rivards  report
of September 19, 2001 (stating that the condition was not related
to  her  knee injury), Dr. Pitzers report of April 2002  (stating
that  costochondritis  was  not a  factor  in  her  current  pain
complex),  and Thoenis testimony that the condition had  resolved
by  February  2001.   The  board  noted  that  Dr.  Jaens  report
recommended  further treatment but that it  did  not  state  that
Thoeni  was  unable  to  work.  The board is  entitled  to  weigh
contradictory evidence and to make a determination.28  The reports
of   two   doctors  plus  the  claimants  own  testimony  clearly
constitute substantial evidence.
          Thoeni argues that the reports of Drs. Mason and Rivard
which  the  board held rebutted the presumption of compensability
were inadmissible.  Since this argument was not raised before the
board  or the superior court, it is waived.29  Moreover, we  note
that  the  board  may use relaxed evidentiary  standards  in  its
          hearings,30 that the board favors the production of medical
evidence  in the form of written reports,31 and that the  reports
would  likely  be admissible under Evidence Rules 803(a)(4)   the
hearsay   exception  for  statements  for  purposes  of   medical
diagnosis  or  treatment  or (a)(6)  the  hearsay  exception  for
business  records.  Thoeni also argues that the  report  for  the
September  2001  exam  provided by Dr. Rivard  is  obviously  for
someone  other  than  the employee, but she did  not  raise  this
challenge below and our review does not indicate plain  error  on
the part of the superior court.
          We generally hold pro se litigants such as Thoeni to  a
less  demanding  standard than counseled litigants.32   But  this
relaxed  standard has limits; for example, even  when  a  pro  se
litigant  is involved, an argument is considered waived when  the
party cites no authority and fails to provide a legal theory  for
his or her argument.33  Similarly, a pro se litigant who fails to
raise  an  issue below should not be able to raise the  issue  on
appeal  absent  plain error.34   We will consider  arguments  not
raised  explicitly in the trial court (here  the  .  .  .  agency
hearing)  if  the  issue  is (1) not  dependent  on  any  new  or
controverted  facts; (2) closely related to the appellants  trial
court  arguments;  and  (3)  could have  been  gleaned  from  the
pleadings.35  Thoenis challenges to the Rivard and Mason reports,
to  the  qualifications  of Drs. Barth and  Weingarten,  and  her
arguments  that  appellees interfered with the  selection  of  or
improperly  influenced physicians, do not  meet  the  second  and
third prongs of this test.
     E.   The Boards Finding that Thoenis Depression and Insomnia
          Were  Not  Work-Related  Is  Supported  by  Substantial
          Evidence.
          
          The board based its finding that Thoenis depression and
insomnia  were not work-related on the reports of Drs. Barth  and
Weingarten.36  These reports provide substantial evidence for the
boards conclusion. Dr. Barth indicated that any mental illness is
not   attributable   to   her  claim  of   work-related   injury.
  Dr. Weingarten stated, In my opinion, to a reasonable degree of
medical  certainty, none of these psychiatric diagnoses would  be
related  to  a  work  injury or injuries at  Consumer  Electronic
Services.   Both  the Weingarten and Barth reports  are  thorough
examinations of Thoenis mental health.  The board discounted  the
reports  from Drs. Hamblin and Freeman; these reports are briefer
and are offered by non-specialists.  The board is entitled to  so
weigh  the  evidence;  we do not reweigh the  evidence  but  only
examine  the  record  to determine whether  substantial  evidence
existed.37    We  have  stated  that  medical  testimony   cannot
constitute  substantial  evidence if it simply  points  to  other
possible  causes  of  an employees injury or disability,  without
ruling  out  work-related  causes.38  The  Weingarten  and  Barth
reports  both  expressly  rule out  a  work-related  genesis  for
Thoenis mental injury.
          Thoeni  challenges Dr. Barths qualifications,  alleging
that  he  was  not  licensed to practice medicine  and  that  his
qualifications were misrepresented to her.  Thoeni did not  raise
          this challenge before the board and the record offers no evidence
of plain error.  Thoenis letter of March 3, 2002 refers to Robert
Barth,  Ph.D.   Any inference Thoeni drew that Dr. Barth  was  an
M.D. seems to be unsupported.
          Alaska  Statute 23.30.095(e) provides that the employee
shall . . . submit to an examination by a physician or surgeon  .
.  .  authorized  to  practice medicine under  the  laws  of  the
jurisdiction  in which the examination occurs. (emphasis  added).
Thoeni  argues that the plain language of this section  indicates
that  only an M.D. may conduct an EIME.  Plain language  is  only
the  starting  point  of  the  statutory  inquiry,  however.   We
interpret Alaska statutes according to reason, practicality,  and
common  sense, taking into account the plain meaning and  purpose
of the law as well as the intent of the drafters.39  We have held
that unless words have acquired a peculiar meaning, by virtue  of
statutory  definition or judicial construction, they  are  to  be
construed in accordance with their common usage.40
          Alaska  Statute  23.30.395(31) states  that   physician
includes    doctors   of   medicine,   surgeons,   chiropractors,
osteopaths,  dentists, and optometrists.  Because the legislature
chose  to use the word includes rather than more exclusive terms,
we   interpret   the   definition  as  a  non-exclusive   list.41
Accordingly,  the  term  physician  should  be  read  to  include
psychologists   such  as  Dr.  Barth.   This  interpretation   is
consistent  with  the  legislatures  intent  that  AS  23.30   be
interpreted  so  as  to ensure the  quick, efficient,  fair,  and
predictable delivery of indemnity and medical benefits to injured
workers at a reasonable cost.42  Mental health specialists such as
psychologists  are  in  the  best position  to  ensure  effective
treatment  of mental injuries such as those suffered  by  Thoeni.
Her  claim involves a mental injury, so it is reasonable  that  a
doctor skilled in healing mental illness  whether a Ph.D., Psy.D.
or  M.D.   would  be  qualified to conduct the inquiry  into  her
mental  health.  We have consistently credited the  testimony  of
psychologists in workers compensation cases and are of  the  firm
belief that continuing to do so is the proper course.43
            Thoeni  also  argues that Dr.  Barth cooperated  with
Insurer  and  its  attorney  to fraudulently  conceal,  hide  and
misrepresent  alleged diagnostic testing documents.   The  record
indicates  no  basis for this claim.  Indeed, Barths  refusal  to
turn  over  testing documents and thereby violate  copyright  law
seems  quite proper.  Thoenis challenge to Dr. Weingartens report
is similarly misplaced.  She failed to raise the challenge before
the  board  and the record in any case offers no support  to  her
allegations.
     F.   The Boards Conclusions that the Controversions Were Not
          Frivolous   or  Unfair  Are  Supported  by  Substantial
          Evidence.
          
          Under  AS  23.30.155(c), an employer who does  not  pay
workers compensation within the statutory deadlines is subject to
significant penalties.  These penalties do not apply if  benefits
are  controverted  in  good  faith.44  CES  controverted  Thoenis
benefits  claims  on  eight occasions.  Thoeni  argues  that  the
          controversions were in bad faith or unfair and thus invalid.  The
board  concluded that the controversions were made in good faith,
and  the  superior court found that this conclusion was supported
by  substantial  evidence.  CES filed the controversions  on  the
bases  that (1) the injury in question was not work-related,  (2)
Thoeni  refused  to  attend a required medical  examination,  (3)
Thoeni had been released to return to work, or (4) Thoeni refused
to  sign  releases as ordered to by the board.  These  bases,  if
supported, all provide substantial evidence upon which the  board
could conclude that the controversions45 were made in good faith.
The record indicates substantial support in each instance.
     G.   Thoenis Remaining Allegations Are Not Supported by  the
          Record.
          Thoeni  alleges fraud, misrepresentation, perjury,  and
deceit  throughout the course of her briefing.  She asserts  that
appellees  purchased  and  used  .  .  .  false  testimony,  that
[i]nsurers  employees  gave perjured  testimony,  and  that  they
misrepresented  fact  and law in legal  arguments.   No  evidence
appears  in the record to support these allegations.  The  record
does  not  indicate any impropriety sufficient to call the  board
proceedings into question.
          Thoeni  argues that the appellees interfered  with  her
selection  of  doctors and improperly influenced  physicians  who
evaluated  her.  It appears from the record that Thoeni initiated
many  of the changes in physicians.  On other occasions, she  was
referred  from  one physician to another.  The board  noted  that
every time she saw a new physician it was either approved by  the
employer  or  based on a referral from another physician.   While
some  of  the  treating  physicians may have  received  partially
incomplete  medical  records,  their  reports  are  appropriately
cautious  and still provide substantial evidence for  the  boards
decision.  Dr. Weingartens report stated, I am not sure whether I
have  all the information or not, and that accordingly it is hard
to  make a definite diagnosis.  Still, Dr. Weingarten stated that
none  of  the  potential psychological diagnoses would  be  work-
related.   Thoenis arguments that CES  improperly influenced  her
physicians  focuses on the fact that some of the medical  experts
reviewed  previous  reports.  This is  consistent  with  standard
medical  practice.   No evidence of improper influence  otherwise
appears in the record.
          Throughout  Thoenis  briefing  she  argues   that   her
procedural  rights  have been violated.  As  the  superior  court
stated, There is no indication in the lengthy record . .  .  that
her  right  to due process has been violated.  Thoeni  petitioned
the  board  and the superior court for an award of transportation
costs, but has not presented the issue on appeal.
V.   CONCLUSION
          Because substantial evidence did not support the boards
conclusion  that  Thoenis refusal to attend  the  Utah  EIME  was
unreasonable,  the board abused its discretion  when  it  ordered
Thoenis  TTD  benefits forfeited from January 25 to February  21,
2001.   We  thus  REVERSE the board on this point.   Because  the
boards  reliance  on  predictive  testimony  that  proved  to  be
inaccurate  cannot  constitute  substantial  evidence,   we  also
          REVERSE  on the issue of medical stability.  The boards remaining
conclusions  are supported by substantial evidence,  and  Thoenis
contentions  of irregularity are not a basis for overturning  the
boards rulings.  Accordingly we AFFIRM the decision of the  board
in all other respects.
_______________________________
     1     Costochondritis is a [p]ainful inflammation (swelling)
of the cartilage of the ribs.

     2    See AS 23.30.095(e).

     3     AS  23.30.095(k) provides that [i]n  the  event  of  a
medical dispute between the employees attending physician and the
employers  independent medical evaluation, the board may  require
that  a second independent medical evaluation be conducted  by  a
physician . . . selected by the board.

     4     Despite this controversion, CES has continued  to  pay
benefits  for  the knee injury.  According to CES,  it  paid  for
Thoeni to travel to Alabama recently to obtain a knee brace.

     5    See AS 23.30.120(a)(1).

     6     Circle  De Lumber Co. v. Humphrey, 130 P.3d  941,  946
(Alaska  2006);  Alyeska Pipeline Serv. Co. v. DeShong,  77  P.3d
1227, 1231 (Alaska 2003).

     7    Circle De, 130 P.3d at 946.

     8    Id.

     9    Id.

     10     Id.   (quoting Robertson v. Am. Mech., Inc., 54  P.3d
777, 779 (Alaska 2002)).

     11    Cowen v. Wal-Mart, 93 P.3d 420, 424 (Alaska 2004); see
AS 23.30.122.

     12     Municipality of Anchorage v. Devon, 124 P.3d 424, 429
(Alaska 2005).

     13    595 P.2d 626 (Alaska 1979).

     14    Id. at 629.

     15    Id. at 631.

     16    Hagberg v. Alaska Natl Bank, 585 P.2d 559, 560 (Alaska
1978);  see also Municipality of Anchorage v. Anderson,  37  P.3d
420,  421  (Alaska  2001) (declining to treat improperly  brought
workers compensation appeal as petition for review because  doing
so  would not effectively dispose of the issues remaining in  the
underlying  civil action or prevent unnecessary  delay,  expense,
and hardship to the parties).

     17    AS 23.30.095(e) provides, in relevant part:

          The  employee  shall,  after  an  injury,  at
          reasonable  times during the  continuance  of
          the  disability, if requested by the employer
          or  when ordered by the board, submit  to  an
          examination by a physician or surgeon of  the
          employers   choice  authorized  to   practice
          medicine  under the laws of the  jurisdiction
          in  which  the examination occurs,  furnished
          and  paid for by the employer. . . .   If  an
          employee  refuses to submit to an examination
          provided  for in this section, the  employees
          rights  to  compensation shall  be  suspended
          until the obstruction or refusal ceases,  and
          the  employees compensation during the period
          of  suspension may, in the discretion of  the
          board  or  the  court determining  an  action
          brought  for  the recovery of  damages  under
          this chapter, be forfeited.
          
     18    Id.

     19    8 AAC 45.092(e)(6).

     20     See Miceli v. Indus. Commn of Ariz., 659 P.2d 30,  34
(Ariz. 1983) (under Arizona statute requiring examination  to  be
reasonably convenient for employee, requiring travel from  Tucson
to  Phoenix arbitrar[y] and unjust[]); Israel v. Indus. Commn  of
Ariz.,  669  P.2d 102, 106 (Ariz. App. 1983) (when  employee  had
moved  to Alabama from Arizona, missing exam in Phoenix not basis
for suspension of benefits absent showing of reasonable cause for
scheduling  exam in Phoenix); Hansen v. Workers Comp.  App.  Bd.,
211 Cal. Rptr. 506, 509 (Cal. App. 1989) (requiring heart patient
to  travel 185 miles unwarranted and unreasonable); but see  Romo
v. Dept of Labor & Indus., 962 P.2d 844, 849-50 (Wash. App. 1998)
(where previous examiner reported employee able to attend doctors
appointments,   refusal  to  leave  home  for   examination   not
reasonable).

     21     The  board  originally found that  Thoenis  knee  was
medically  stable between October 9, 2000 and January  25,  2001.
Citing to Dr. Masons chart notes of Thoenis November 2 visit  the
visit  which  precipitated a release to  work as of  November  28
and Dr. Hadleys statement on December 7 that Thoeni appears to be
medically  stable at this time, the superior court  narrowed  the
boards  finding, holding that there was not substantial  evidence
for medical stability from October 9 to November 2.

     22      See  Wollaston v. Schroeder Cutting, Inc.,  42  P.3d
1065,  1067 (Alaska 2002); Tolbert v. Alascom, 973 P.2d 603,  611
(Alaska 1999).

     23     Alaska law provides that [t]emporary total disability
benefits  may not be paid for any period of disability  occurring
after  the  date  of  medical stability.  AS 23.30.185.   Medical
stability  is 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.  AS 23.30.395(21).

     24     After Dr. Hadley noted his suspicion that Thoeni still
suffered   from  functional  weakness  of  her  left   quadriceps
mechanism,  Dr.  Hadley wrote: The treatment for  this  would  be
continued diligent work on lower extremity strengthening . . .  .
She  appears to be medically stable at this time, however,  other
than   the  suggestion  for continued diligent  work  on  a  knee
strengthening program.  Thus, Dr. Hadley recommended a course  of
exercise  in  an attempt to effect an improvement  in  the  knees
function,  a position that is not consistent with a determination
of medical stability.

     25    42 P.3d 1065 (Alaska 2002).

     26    Id. at 1066.

     27     Under AS 23.30.120, the board must presum[e], in  the
absence  of substantial evidence to the contrary, that the  claim
comes  within  the  provisions of the workers  compensation  act.
Once  the  presumption arises, an employer  can  overcome  it  by
presenting  substantial  evidence that  either  (1)  provides  an
alternative  explanation which, if accepted, would  exclude  work
related factors as a substantial cause of the disability; or  (2)
directly  eliminates any reasonable possibility  that  employment
was  a  factor in causing the disability. Childs v. Copper Valley
Elec.  Assn, 860 P.2d 1184, 1188 (Alaska 1993).  Here, the  board
concluded that the condition was work-related but had resolved.

     28    Dwight v. Humana Hosp. Alaska, 876 P.2d 1114, 1118-19 &
n.7 (Alaska 1994).

     29    Wagner v. Stuckagain Heights, 926 P.2d 456, 459 (Alaska
1996);  Ratliff v. Alaska Workers Comp. Bd., 721 P.2d 1138,  1142
(Alaska 1986).

     30    AS 23.30.135(a) provides in relevant part:

          In  .  . . conducting a hearing the board  is
          not bound by common law or statutory rules of
          evidence  or by technical or formal rules  of
          procedure, except as covered by this chapter.
          
     31    8 AAC 45.120(k).

     32     See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).

     33     Peterson  v. Ek, 93 P.3d 458, 464 n.9  (Alaska  2004)
(internal quotation marks and citation omitted).  See also Bauman
v.  State,  Div.  of Family & Youth Servs., 768 P.2d  1097,  1099
(Alaska  1999)  (declining to extend Breck to require  judges  to
warn  pro  se litigants on aspects of procedure when the litigant
has failed to file even a defective pleading).

     34     State Farm Auto Ins. Co. v. Raymer, 977 P.2d 706, 711
(Alaska  1999) (We will not consider new arguments not raised  in
the  trial court, unless the issues establish plain error .  .  .
.).

     35    McConnell v. State, Dept of Health & Soc. Servs., Div.
of Medical Assistance, 991 P.2d 178, 183 (Alaska 1999).

     36      Although   AS  23.30.120(c)  provides   that   [t]he
presumption  of compensability . . . does not apply to  a  mental
injury  relating  from work-related stress,  the  board  properly
applied  the  presumption  here because  Thoenis  claim  involves
mental  injury resulting from work-related physical injury rather
than  mental  injury  resulting from  work-related  stress.   Cf.
Williams v. Abood, 53 P.3d 134, 137 (Alaska 2002) (board attached
presumption  where claimant suffered from depression after  work-
related physical injury).

     37    Childs v. Copper Valley Elec. Assn, 860 P.2d 1184, 1189
(Alaska 1993).

     38    Id.

     39    Native Village of Elim v. State, 990 P.2d 1, 5 (Alaska
1999).

     40     Govt Employees Ins. Co. v. Graham-Gonzalez, 107  P.3d
279, 284 (Alaska 2005) (quoting Muller v. BP Exploration (Alaska)
Inc., 923 P.2d 783, 787-88 (Alaska 1999)).

     41      See   2A  Norman  J.  Singer,  Sutherland  Statutory
Construction   47:23  at  316 (6th ed.  2000)  (When  include  is
utilized, it is generally improper to conclude that entities  not
specifically  enumerated  are  excluded.).   Compare  Schwab   v.
Ariyosi,  564  P.2d 135, 141 (Haw. 1977) (The  term  includes  is
ordinarily a term of enlargement, not of limitation; a  statutory
definition  of  a  thing  as including certain  things  does  not
necessarily  impose  a  meaning limited to the  inclusion.)  with
Ranney  v.  Whitewater Engg, 122 P.3d 214, 218-19  (Alaska  2005)
(applying the maxim expressio unius est exclusio alterius   where
certain things are designated in a statute, all omissions  should
be understood as exclusions  when statute began list with payable
in  the  following amounts to or for the benefit of the following
persons).   See also State, Dept of Revenue v. Deleon,  103  P.3d
897,  900  (Alaska  2004)  (expressio  unius  not  applicable  if
contrary to the purpose of the statute).

     42    Ch. 101,  1, SLA 2000.

     43     See, e.g., Norcon, Inc. v. Alaska Workers Comp.  Bd.,
880  P.2d  1051,  1055-56 (Alaska 1994);  Olsen  Logging  Co.  v.
Lawson, 856 P.2d 1155, 1156 (Alaska 1993); Fox v. Alascom,  Inc.,
718 P.2d 977 (Alaska 1986).

     44    In Harp v. ARCO Alaska, Inc., 831 P.2d 352, 358 (Alaska
1992), we held:

          A  controversion notice must be filed in good
          faith  to protect an employer from imposition
          of  a  penalty.  .  . . For  a  controversion
          notice  to  be  filed  in  good  faith,   the
          employer must possess sufficient evidence  in
          support  of  the controversion that,  if  the
          claimant  does  not  introduce  evidence   in
          opposition  to the controversion,  the  Board
          would  find that the claimant is not entitled
          to benefits.
          
     45     Thoeni characterizes CESs July 25, 2001 conversion of
her  benefits  from total temporary disability (TTD)  to  partial
permanent impairment (PPI) as a controversion.  But she failed to
dispute  this  change  before the board;  thus,  she  waived  her
challenge to it.
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