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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Groom v. State, Dept of Transportation (10/26/2007) sp-6180

Groom v. State, Dept of Transportation (10/26/2007) sp-6180, 169 P3d 626

     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,


) Supreme Court No. S- 11882
Appellant, )
) Superior Court No. 4FA-03-1444 CI
v. )
TRANSPORTATION, ) No. 6180 October 26, 2007
Appellee. )
Appeal    from     the
          Superior Court of the State of Alaska, Fourth
          Judicial  District,  Fairbanks,  Richard   D.
          Savell, Judge.

          Appearances:  James M. Hackett, Law Office of
          James  M.  Hackett, Fairbanks, for Appellant.
          Rebecca  H. Cain, Assistant Attorney General,
          Anchorage,  and  David W.  M rquez,  Attorney
          General, Juneau, for Appellee.

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

          BRYNER, Chief Justice.
          In 1999 the Alaska Workers Compensation Board concluded
that  Scott Groom had injured himself in a slip-and-fall incident
at  work.  In 2003 the board reversed course and determined  that
Groom  had not been involved in a slip-and-fall incident.   After
finding  that  Grooms work duties required neither heavy  lifting
nor  episodes of prolonged standing and that Groom had  not  been
required to engage in heavy or extended snow shoveling, the board
denied  Grooms  claims  for  various  disability  and  impairment
benefits.  We reverse the boards 2003 resolution of Grooms  slip-
and-fall claims because the board failed to give Groom any notice
that  it  might  revisit  its  1999  determination  that  he  had
sustained  an  injury in the course and scope of  his  employment
with  the state.  We also reverse the boards dismissal of  Grooms
remaining  claims because the board applied the  incorrect  legal
standard  in  finding that the state had rebutted the presumption
of compensability.  We remand this case for further proceedings.
          Scott   Groom  suffers  from  a  condition   known   as
congenital lymphedema, or Milroys disease.  Congenital lymphedema
is  a genetic disorder of the lymphatic system and is quite rare.
Vessels  in  the  lymphatic  system  circulate  lymph  and  other
interstitial  fluids  throughout the body;  Groom  is  missing  a
number  of  these vessels, and, as a result, his  arms  and  legs
frequently  swell  with  uncirculated fluid.   In  their  swollen
state,  Grooms legs are spongy.  Lymphatic vessels also transport
bacteria  and  other hostile agents to lymph nodes, allowing  the
body  to  produce  antibodies; because Grooms body  or  lymphatic
system  cannot  perform this function reliably, he  is  prone  to
cellulitis, a type of local skin infection.
          Groom worked for the Department of Transportation as  a
weigh  station  operator.  On March 13, 1999, after  letting  his
supervisor know that he had injured himself in a fall, Groom left
the Fox weigh station near Fairbanks and never again returned  to
work.   Soon after, he completed a report of occupational  injury
in which he alleged that he had fallen on the ice, creating a rip
in  [his]  left leg.  In the employer section, Grooms  supervisor
wrote,  Scott  told me that he fell measuring  a[n]  Alaska  West
Express 3S1S1 Axle Spread . . . on a trailer.
          The  state twice controverted Grooms report of  injury.
In  its second controversion the state declared that Groom  could
not  have  fallen while inspecting an Alaska West  Express  truck
because,  according  to  an  investigation  by  the  state,   the
measurement  allegedly taken by Groom on March 13  did  not  take
          Groom then filed an application for adjustment of claim
with  the Alaska Workers Compensation Board.  In that application
he  stated that he ripped open his left calf at work by  slipping
and  falling while measuring an Alaska West Express bulker  truck
at   the  Fox  weigh  station.   He  requested  temporary   total
disability and permanent partial impairment benefits, as well  as
costs and penalties.
          The  board held a hearing on Grooms claim on August  5,
1999.  At the request of the state, the board considered only one
issue  whether Groom ripped his left calf open on March 13,  1999
in  a slip-and-fall accident at the Fox weigh station.  The board
heard testimony from Groom, Grooms mother, and Grooms supervisor.
Groom testified:
          I walked around to the back of th[e] truck, I
          slipped with my left leg and went down Indian
          style   my right knee came down [on] my  left
          calf [and] popped it like a big [] zi[t].
          Grooms  mother testified that when she saw Grooms  leg,
it  looked as though it had crack[ed] open like a watermelon that
is  too  ripe.   Both  she  and Groom  described  the  injury  as
unusually severe.  Groom admitted that he did not initially  seek
medical attention for the injury.
          Grooms  supervisor testified that Groom could not  have
fallen while inspecting an Alaska West bulker truck on March  13,
because  Alaska  West  had not shipped any  bulkers  in  a  3S1S1
configuration  on  that  day.  He also noted  that  the  computer
system  had  no  record of a truck, bulker  or  otherwise,  being
inspected near the time Groom claimed to have fallen.
          In  response Groom denied ever claiming that the  truck
he  was inspecting was a bulker.  He also argued that the absence
of  a  computer record could be readily explained: after he fell,
he  immediately  allowed the truck he was  inspecting  to  leave.
Rather  than record an incomplete inspection, he deleted the  log
          The  state  also  submitted the  deposition  of  Andrew
Holland, a physicians assistant at Tanana Valley Clinic.  Holland
was  the  first  health  care provider Groom  saw  following  his
injury.    Holland  testified  that  he  diagnosed   Groom   with
cellulitis because of patchy red skin.  His chart notes  did  not
show  a  laceration, and he said that he would normally note  the
presence  of  a laceration if he observed one.  He also  observed
swelling in Grooms legs.
          The board handed down its decision on October 14, 1999.
It  found  that  the state had produced substantial  evidence  to
overcome  the presumption of compensability and had  shifted  the
burden  to  Groom  to prove his claim by a preponderance  of  the
evidence.   It found that Groom had met this burden and  declared
that  Grooms  claim for workers compensation benefits  associated
with his March 13, 1999 injury was compensable.
          In  reaching this conclusion the board found: (1) Groom
and his mother were generally credible witnesses; (2) an on-going
personnel  dispute  explained  why  Groom  removed  the  computer
evidence:  because  he did not wish to document  his  failure  to
weigh  and measure trucks, as required by his employer;  and  (3)
the absence of contemporaneous medical treatment was explained by
Grooms difficulty in finding knowledgeable medical providers  for
his  disease  and his consequent history of self treatment.   The
board made one additional finding:
          Significantly, . . . though we were not asked
          to  decide  this issue, we also  believe  the
          associated   flare   up   was   a   temporary
          aggravation  of a preexisting  condition  and
          that   entitlement  to  benefits  ended  upon
          resolution of the condition.
          The  state  petitioned  the  board  to  reconsider  its
decision;  the  board declined. The state then  appealed  to  the
superior court.
          About  a  month  after the 1999 board  decision,  Groom
filed  a  second  report of occupational injury.   He  claimed  a
different type of injury, centering on his snow shoveling  duties
the  previous winter.  He stated that he had been forced to  work
the  Ester  Scale  with  no snow blower, just  a  shovel  causing
constant tears & damage to both legs.  The state controverted the
report by arguing that Groom failed to provide written notice  of
the  injury within thirty days, as required by AS 23.30.100,  and
that  there  was no medical documentation linking Grooms  current
condition to his work with the state.        Because the  parties
had  agreed  to  address only one aspect of Grooms  slip-and-fall
claim at the boards initial hearing on that claim, they continued
to develop other aspects of their cases during the superior court
appeal.    The   state   arranged  for  an  independent   medical
examination of Groom by Dr. Andrzej Szuba on March 3,  2000.  Dr.
Szuba  stated  that  Grooms cellulitis in 1999  could  have  been
caused by trauma even in the absence of a visible laceration;  he
concluded that Grooms work for the state was a substantial factor
in exacerbating Grooms lymphedema.  Shortly after Dr. Szuba wrote
his  report,  Groom filed another application for  adjustment  of
claim  under  the  slip-and-fall case number,  seeking  permanent
total  disability and permanent partial impairment  benefits,  as
well  as  penalties  and interest.  He claimed  that  the  states
controversions had been unfair or frivolous and reported that the
slip  and  fall  had caused cellulitis, swelling,  infection  and
fever, [and an] increase in production of lymphatic fluid.
          The  states answer characterized Grooms application  as
an  amendment to his original claim.  It agreed that Groom  could
amend  his  claim  to  include an award  of  additional  benefits
because   the  scope  of  the1999  hearing  did  not  include   a
determination  of the benefits to which Groom was entitled.   But
it denied that Groom could allege a different type of injury from
that addressed in the August 5, 1999 hearing, contending that the
new   allegation   would  interfere  with  the  superior   courts
jurisdiction or constitute an impermissible attempt to relitigate
issues  that the board had already decided.  It also denied  that
Grooms employment was a substantial factor in bringing about  any
change in his lymphedema.
          Groom then filed an affidavit of readiness for hearing.
The  state  opposed  it,  claiming  that  it  needed  to  conduct
additional  discovery  about  the  nature,  scope,  and  physical
demands  of Grooms work, as well as medical stability  and  total
disability.  The board scheduled a hearing for November 21, 2000.
The   state  deposed  Dr.  Szuba  before  the  hearing.   In  his
deposition  Dr. Szuba testified that an injury to Grooms  leg  on
March  13,  1999  could  aggravate his lymphedema  by  increasing
swelling;  he  further testified that every cellulitis  infection
damages   the  lymphatic  system.   Dr.  Szuba  also  said   that
cellulitis  could develop even without an objective tear  in  the
skin  because  of  blunt  trauma  or  an  increased  workload  or
swelling.   Dr.  Szubas impression was that Grooms condition  had
changed  significantly from the year before.  Dr. Szuba indicated
that  if  Grooms work did not involve prolonged standing or  very
much  snow  shoveling,  then  he would  have  to  reconsider  his
conclusion  that  Grooms work had been a  substantial  factor  in
aggravating  his  lymphedema.  Dr. Szuba gave  his  opinion  that
Groom was not medically stable and might benefit from specialized
          Following Dr. Szubas deposition, Groom filed  a  second
revision  of  his  slip-and-fall  claim.   In  it,  he  requested
temporary  total disability benefits from March 13,  1999  onward
because  of  Dr. Szubas testimony that he was not  yet  medically
stable.  The parties agreed to postpone the scheduled hearing  so
that  the  state could respond to Grooms latest claim.  When  the
state  filed  its  answer, it admitted that Dr. Szuba  said  that
Groom  was not medically stable but denied that Grooms  work  for
the  state entitled him to receive temporary total disability and
medical benefits.
          On  January 4, 2001, the superior court upheld the 1999
board  decision, deciding that the boards findings were supported
by  substantial evidence.  It also found that the board  had  not
violated  the  states  due  process  rights  by  considering   an
alternative  injury  theory when it discussed  the  flare  up  of
Grooms lymphedema.
          The  parties  then set another hearing date,  June  14,
2001,  on Grooms claim. On March 5, 2001, Groom filed his  fourth
workers  compensation claim, asserting that the  superior  courts
decision  established  the law of the case;  he  again  requested
temporary   total  disability  and  permanent  total   disability
benefits, as well as penalties and interest.  The state  answered
this  claim  by asserting that the law of the case  included  not
only  the  fact that the slip and fall had occurred but also  the
limited  nature  of the flare up. It denied that  it  should  pay
benefits  based  on  Dr.  Szubas  written  reports  because   its
investigation  showed  that Grooms work duties  were  not  as  he
described them. It renewed its defense that Grooms second  report
of  injury   centering  on his snow- shoveling  duties   was  not
timely  and raised the additional defense that the snow-shoveling
claim  had  not  been  filed  within  the  two-year  statute   of
          On  March  9,  2001,  Groom  filed  his  fifth  workers
compensation  claim using the slip-and-fall  case  number.   This
claim  encompassed both the slip and fall and the  injury  report
related to snow shoveling.  It gave the following description  of
his injuries:
          [C]ontinuous   aggravation,   triggered    by
          injury,  injured left leg at work by slipping
          & falling; while this act was the culminating
          event,    employer    aggravated    employees
          lymphedema   by   requiring   standing    and
          shoveling prior.
Groom   reported  that  this  claim  was  needed  to  make  [his]
application  consistent with facts adduced through discovery  and
medical examinations.  The state answered the March 9, 2001 claim
by  asserting  that  any claim for permanent aggravation  of  his
lymphedema should have been filed under the case number that  the
board  assigned to the snow-shoveling report of injury  and  that
his  claims related to the snow shoveling or standing were barred
either  because  of late notice of the injury or because  of  the
statute of limitations.
          Groom filed a final workers compensation request on May
10,  2001.   In  this claim he asserted that the  nature  of  his
injury  was incremental injuries over time, culminating  in  left
leg  injury.   He  asserted that if Dr. Szubas  reports  did  not
establish  permanent  total  disability,  then  they  established
temporary  partial  disability; Groom then added  a  request  for
temporary partial disability benefits to his claim.
          At  a  June  1, 2001 prehearing conference,  the  board
joined  Grooms  two  injury  claims  the  slip-and-fall  and  the
shoveling-and-standing  injury   because   discovery   had   been
conducted as to both injuries after the boards 1999 decision.
          The  board  held a second hearing on August  16,  2001.
Five witnesses testified in person for Groom: (1) Groom; (2)  his
mother;  (3)  a  friend, who testified that Groom likely  had  to
shovel  a  substantial amount of snow; (4) a DOT supervisor,  who
provided   information  about  the  states   vehicle   inspection
processes; and (5) a commercial vehicle enforcement officer,  who
provided information about inspections and snow-shoveling  duties
around the weigh station.  Two witnesses testified for the state:
(1)  another  weigh  station operator, who  testified  that  snow
shoveling was light duty and inspections were short and  required
little  standing; and (2) Grooms supervisor, who testified  about
office  procedures and the lack of snow in Fairbanks  during  the
1999  winter.  Grooms treating physician, Dr. Bartling, testified
by  deposition.  The board left the record open at the end of the
August  16 hearing.  The state stipulated to payment of temporary
total  disability compensation until the board reached a decision
in the case.
          The  board  reconvened on June 13, 2002 to receive  Dr.
Szubas   testimony.  Dr.  Szuba  testified  that  his  deposition
testimony in 2000 had focused on Grooms description of  his  work
as involving prolonged standing and heavy work shoveling snow, as
well  as  on  the  fact  that Groom did not have  proper  medical
garments  to control his lymphedema.  Dr. Szuba then stated  that
there  are  no medical guidelines for the length of time  someone
with  lymphedema should stand; some patients with lymphedema will
experience  swelling  within  as little  as  fifteen  minutes  of
standing,  while others can tolerate longer periods of  standing.
Dr.  Szuba  reiterated  his  testimony  that  Grooms  March  1999
cellulitis damaged his lymphatic system, but the damage would  be
limited  to  his  left leg.  He stated that if he  assumed  on  a
hypothetical basis that Grooms work activities were much  lighter
than  he described, he would not conclude that Grooms work was  a
substantial  factor  in  aggravating  his  lymphedema.   He  also
testified,  however,  that vehicle inspections  as  described  by
Grooms  co-worker  would be sufficient to cause  an  increase  in
swelling  and  that  standing and shoveling would  worsen  Grooms
condition  regardless of the frequency with which  he  did  them.
Ultimately,  Dr. Szuba reaffirmed his deposition  testimony  that
Grooms  work was a substantial factor in bringing about the  need
for medical treatment and Grooms disability.
          The  board issued an interlocutory decision on July 25,
2002.   It  concluded  that  Groom had  misrepresented  his  work
conditions.  The board found that Grooms lack of credibility  was
uniquely  troubling  because it undercut the  usefulness  of  the
medical  opinions offered by Drs. Szuba and Bartling.  The  board
ordered  Groom to undergo a second independent medical evaluation
because   the   board  found  that  the  medical  opinions   were
inconsistent, making it difficult to determine whether Groom  was
medically  stable  or  permanently totally disabled.   The  board
further   directed  that  the  second-evaluation   physician   be
requested  not to rely on Grooms assertions about his  work.   It
also ordered that the second-evaluation physician be given copies
of the interlocutory order and the 2001 hearing transcript.
          In a petition for reconsideration Groom argued that the
board could not fairly rely on the boards earlier findings beyond
the  conclusion of compensability because the nature or  type  of
Grooms  disability was not an issue to be decided by the  [first]
Board.   Groom argued that adopting any other part of the  boards
original  dicta  would  deny him due process  of  law.   He  also
requested  that the board provide the second-evaluation physician
with  a  transcript  of  the  1999  hearing.   The  board  denied
reconsideration,  emphasizing  that  no  transcript  was   needed
because  its 1999 decision and the superior court order affirming
it were long[] since final.
          The  board  selected Dr. Neil Pitzer to evaluate  Groom
for the second independent medical evaluation.  It posed a number
of  questions to Dr. Pitzer.  Most of the questions assumed  that
the  March 13, 1999 slip-and-fall accident happened and asked Dr.
Pitzer  his opinion of the effect of the slip and fall on  Grooms
condition.   Dr. Pitzer examined Groom on December 5,  2002.   In
his  report  Dr. Pitzer concluded that:  (1) the March  13,  1999
injury  aggravated or combined with Grooms preexisting lymphedema
to  produce  the  need for medical treatment or  disability;  (2)
Groom was medically stable; and (3) Groom had a six percent whole
person impairment related to his March 13, 1999 injury.
          On  May  8, 2003, the board held its fourth hearing  on
Grooms  claims.  Dr. Pitzer testified by deposition.   The  board
also  heard  testimony  from  Groom  again  and  from  two  final
witnesses and closed the record.  It issued its final decision on
May 30, 2003.
          The   board  decision  focused  on  Grooms  claim   for
permanent  total disability  benefits.  It began by  noting  that
Groom  had  made  a  prima facie case for such benefits  and  was
entitled    to   the   presumption   of   compensability    under
AS  23.30.120(a).1  It next determined that the  presumption  was
overcome  by  the substantial evidence provided  by  the  second-
evaluation physician, Dr. Pitzer, that Groom was able  to  return
to  employment  in  positions that did  not  require  significant
physical  effort  or  exposure to contusions  or  other  physical
stress  and  that  he did not suffer permanent  and  total  work-
related disability.  As a result, Groom was required to prove his
case by a preponderance of the evidence.
          The  board  then revisited its 1999 finding that  Groom
had injured himself at work on March 13, 1999.  It stated:
          Based  on the slender record available to  us
          at the time of the August 5, 1999 hearing, we
          gave  credence to the employee in our October
          14,  1999  and  November 19, 1999  decisions.
          Those   decisions,  and  the  Superior  Court
          affirmation of those decisions, are now final
          and  the  employees entitlement to the  brief
          period   of   [temporary  total   disability]
          benefits  awarded  in those  decisions,  from
          March 13, 1999 through March 31, 1999, is now
          final.   Nevertheless, based on the  evidence
          fully  developed  in the present  record,  we
          find  the  employees  testimony  is  patently
          incredible.   We now find his explanation  of
          the  disappearance of the employers  computer
          records  concerning the truck he  asserts  is
          involved in his March 13, 1999 trip and  fall
          claim is not credible.  We are unable to give
          any  weight to his uncorroborated history  of
          that  accident.  We also find the  subsequent
          medical  records, especially those of  P.A.C.
          Holland, are persuasive that the employee did
          not  suffer a significant open wound  at  the
          time   that   he  claimed.   Based   on   the
          preponderance  of the total evidence  in  the
          present record, we find the employee did  not
          suffer  his claimed injury at work  on  March
          13, 1999.
(Citations omitted.)
          The  board  also  found that Grooms  misrepresentations
entirely  undercut  the utility of all expert  testimony  in  his
case;  it  stated,  [W]e can give no weight  to  the  substantive
opinions  of  the[] physicians regarding the work-relatedness  of
this  employees lymphedema.  It then went on to rely on testimony
from  Drs. Szuba and Pitzer to decide that Grooms lymphedema  was
not  substantially  aggravated by his work  for  the  state.   It
denied  his  claim for permanent total disability  benefits.   It
then  denied the rest of Grooms claims because it had  determined
that  he  did  not injure himself or substantially aggravate  his
lymphedema  in  the course and scope of his work.   Finally,  the
board decided that the statute of limitations issue was moot.
          Chairman  Walters  dissented from the  boards  opinion.
Like  the  board, he would have found that Groom was  incredible,
had not suffered a slip-and-fall injury, and was not entitled  to
permanent total disability benefits.  Unlike the board,  Chairman
Walters   would,  given  the  near  vacuum  of  reliable  medical
evidence,  have  relied  on Dr. Pitzers opinion  to  award  Groom
permanent  partial  impairment benefits for a six  percent  whole
person  impairment and temporary total disability  benefits  from
March 13, 1999 through July 30, 1999, as well as medical benefits
related to the aggravation.
          Groom  appealed  the boards decision  to  the  superior
court.  He argued, among other things, that:  (1) his claims were
not  barred  by the statute of limitations; (2) the  doctrine  of
issue  preclusion  should  have prevented  the  2003  board  from
reversing  the final and binding decision of the 1999 board;  (3)
the  2003 board erred in applying collateral estoppel to the 1999
boards  dicta  that Grooms lymphedema aggravation was  temporary;
(4)  the 2003 board erroneously deprived Groom of the presumption
of  continuing disability and further erred in fashioning its own
medical  opinions; and (5) the boards decision was not  supported
by  substantial  evidence.  The state responded that  the  boards
decision  was  correct and that Grooms issue-preclusion  argument
was  meritless;  it  also  reiterated its  argument  that  Grooms
standing  and  shoveling claims were barred  by  the  statute  of
          At  oral  argument  in the superior  court,  the  state
raised  for  the  first time the argument that  issue  preclusion
could  not apply to the 2001-2003 board proceedings because  they
were  a  modification  under AS 23.30.130.   The  superior  court
ordered supplemental briefing on this issue.  In his briefing  on
the modification issue, Groom argued that if the later proceeding
was a modification, then the board had denied him due process  by
not  giving him notice of the issues it intended to examine.   He
also alleged that he was prejudiced by the lack of notice because
he  could  have  produced  additional corroborating  evidence  to
support his claims of the 1999 injury.
          The  superior  court affirmed the boards decision.   It
decided  that  res  judicata  did not  apply,  because  the  2003
decision  was based on new claims Groom filed in 2001,  including
his  claims that standing and shoveling aggravated his lymphedema
and  increased his disability.  It further ruled that even if the
case involved a modification, it fell within the boards power  to
modify  its  decisions.  The superior court also ruled  that  the
board  had provided sufficient legal justification to reopen  the
case,  but  it  did not address Grooms due process  claims.   The
superior  court went on to conclude that the state  had  provided
sufficient  evidence to rebut the presumption  of  compensability
and  that  the  boards  findings were  supported  by  substantial
evidence.  The superior court declined to rule on the statute  of
limitations question because the board had not addressed it.
          Groom  petitioned  for rehearing.  The  superior  court
denied the petition. Groom appeals.
          Groom urges us to reverse the boards 2003 decision  and
award  him  a  variety  of benefits.  He  argues  that  the  2003
decision  was  an impermissible modification of  the  1999  board
order.  He further argues that the 2003 decision was flawed  both
because   the   state   failed  to  rebut  the   presumption   of
compensability  and because the board fashioned its  own  medical
opinions.   The  state contests each assertion  and  additionally
argues  that Grooms snow shoveling and prolonged standing  claims
are barred by the statute of limitations.
     A.   Standards of Review
     When  the  superior  court acts as  the  intermediate  court
of  appeal  in an administrative matter, we independently  review
and  directly scrutinize the merits of the administrative  boards
decision.2   We  review  the  boards  factual  findings  under  a
substantial  evidence standard.3  Under this  standard,  we  will
uphold the boards findings so long as they are supported by  such
relevant  evidence as a reasonable mind might accept as  adequate
to support a conclusion.4
          We   review  questions  of  law  not  involving  agency
expertise de novo, substituting our own judgment for the boards.5
We will adopt rules of law most persuasive in light of precedent,
reason, and policy.6
     B.   Inadequate Notice
          Groom  argues  that  the boards 2003 decision  violated
AS  23.30.1307 by modifying the boards 1999 board  decision.   He
alleges that the board failed to provide him with adequate notice
in 2003 of its intent to revisit its 1999 findings concerning the
original  slip-and-fall  claim and that  in  modifying  the  1999
decision, the 2003 decision failed to indicate how the 1999 Board
decisions were mistaken.
          Groom  argues  that the board was bound to  follow  the
procedures  set out in AS 23.30.1108 and its own regulations  for
notice  and identification of issues.  Groom notes that  we  have
previously reversed the board for failing to provide notice  that
it  intended  to  revisit a factual finding,  and  he  cites  our
decision  in  Dresser Industries v. Hiestand.9  In  response  the
state  argues that Grooms notice arguments are meritless  because
Groom himself asserted that he could seek additional benefits for
the  March 13, 1999 slip and fall and that Groom cannot seriously
argue that he was surprised by the Boards review of the facts  on
which [its] earlier decision [had been] based.
          We have previously held that the crux of due process is
the opportunity to be heard and the right to adequately represent
ones interests.10  While the actual content of the notice is  not
dispositive in administrative proceedings, the parties must  have
adequate  notice  so  that they can prepare  their  cases:  [t]he
question  is whether the complaining party had sufficient  notice
and information to understand the nature of the proceedings.11  We
have also held that defects in administrative notice may be cured
by  other  evidence  that the parties knew what  the  proceedings
would entail.12
          Based  on  the  record in this case, we hold  that  the
board  did  not give Groom adequate notice that it would  revisit
its  earlier  factual finding that he had sustained a compensable
injury on March 13, 1999.  In reaching this conclusion we look at
the  notices  the board gave the parties concerning its  upcoming
hearings,  the parties pleadings, and other written material  the
board  produced relating to the claim, such as its  interlocutory
orders and its letter to the second-evaluation physician.13
          The  Alaska Workers Compensation Board gives notice  to
parties  of  the  issues to be addressed  at  a  hearing  through
prehearing  conference summaries.14  By regulation, a  prehearing
summary  governs  the issues and course of the hearing  absent  a
finding of extenuating circumstances.15  In this case, the  board
never identified reconsideration of its prior decision that Groom
had  in  fact suffered a compensable injury in March 1999  as  an
issue  it might consider at a hearing.  The state never requested
in  any  of  its  pleadings that the board reconsider  the  issue
          either.16 In fact, the state affirmatively represented that it did
not  contest  that Groom had suffered a slip and  fall  in  March
1999.  For example, in closing argument in 2003, counsel for  the
state  said that it is true that were no longer arguing that  Mr.
Groom did not slip and fall on March 13th, because that was found
by  the board to be the case.17  The state also never argued that
the  board should reexamine its decision that the slip  and  fall
happened  in  its  briefing before the board.  Before  the  final
hearing in May 2003, the state asked the board to dismiss  Grooms
claims  related  to standing, shoveling, and other  general  work
duties,  so  that the only remaining issue would be  whether  the
compensable  March 1999 cellulitis infection (flare-up)  entitled
the  Employee  to more benefits th[a]n those originally  paid  or
conceded by the Employer.
          All  of  the evidence in the record suggests  that  the
parties  and  the board alike considered the question  of  Grooms
fall to be settled by the law of the case.  When the board denied
Grooms  request that the second-evaluation physician be  provided
with  a  copy of the 1999 hearing transcript, it did  so  because
that  decision was long[]since final.  Both parties  referred  to
the previous superior court decision as the law of the case.  The
law  of  the  case  doctrine  maintains  that  issues  previously
adjudicated   can   only  be  reconsidered  where   there   exist
exceptional circumstances presenting a clear error constituting a
manifest  injustice. 18  Even if the board could  reconsider  the
issue   in a modification for example  it could not do so without
giving the parties some notice that it was considering doing just
          The  boards letter to Dr. Pitzer, the second-evaluation
physician,  likewise  gives  no  hint  that  it  was  considering
revisiting  its  earlier  decision on the  slip  and  fall.   The
questions the board posed to Dr. Pitzer included the following:
          1.    Which complaints or symptoms are or are
          not related to the 03/13/1999 injury and what
          is the basis for your opinion?
          2.    Did  the  03/13/1999 injury  aggravate,
          accelerate,  or  combine with a  pre-existing
          condition  to  produce the need  for  medical
          treatment or the disability?
          . . . .
          4.    Based upon the following Alaska Workers
          Compensation  Act  definition,  is  SCOTT  A.
          GROOM  medically  stable  for  any  condition
          attributable to the March 1999 incident?
          Although  the  boards  notice may have  been  nominally
defective,  if  Groom could have adequately  presented  his  case
despite the defect in notice, then his right to due process would
not have been violated.19  But Groom has made an adequate showing
that  he  was actually prejudiced by the lack of adequate notice.
In  the  superior court, Groom asserted that had  he  been  given
proper  notice, he could have called his mother as a live witness
          again20 and also could have provided corroborating evidence of the
slip and fall.
          The   state  nevertheless  asserts  that  Groom  cannot
plausibly  claim surprise because, according to the  state,  [i]t
was  Groom  himself who maintained that he could seek  additional
benefits based on the March 13, 1999, slip and fall and that  his
subsequent  claims regarding snow shoveling, prolonged  standing,
and  vehicle inspections merely amended his earlier claims.   Yet
the board never made it clear whether it regarded a second set of
claims   his  shoveling  and standing claims   as  claims  for  a
separate  injury from his original slip-and-fall claim or  as  an
attempt to expand the original claim.  When Groom first filed the
shoveling and standing claims in late 1999, the board treated the
new  injury report as distinct from Grooms original slip-and-fall
claim  and thereafter treated the claims as procedurally distinct
until 2002, when it scheduled a single hearing encompassing  both
claims.   Even  then,  however,  the  boards  prehearing   notice
appeared  to regard the case as involving claims of two  separate
injuries that were scheduled for a single hearing, rather than  a
single  claim  requiring a hearing on two  issues.21   Given  the
continuing   uncertainty  as  to  the   procedural   status   and
interrelationship  of Grooms original and subsequent  claims,  we
conclude  that Groom did not receive clear notice that  the  2003
hearing  might  be  regarded by the  board  as  an  occasion  for
revisiting its 1999 decision on his original claim.  Because  the
board   provided  inadequate  notice  to  Groom  that  it   might
reconsider its earlier factual determination that he had  slipped
and fallen in March 1999, its decision that the slip and fall did
not occur must be reversed.
     C.   Rebutting the Presumption of Compensability
          Groom next argues that the boards 2003 decision must be
overturned  because  the  state failed to  adequately  rebut  the
presumption  of  compensability.   He  argues  that   the   board
erroneously  fashioned its own medical opinions and  ignored  the
unanimous  medical testimony that Groom had suffered work-related
injuries rendering him permanently disabled.
          The state responds first by intimating that the medical
experts  did not unanimously and unambiguously diagnose Groom  as
permanently and totally disabled.  Second, the state claims  that
it  was  well within the boards discretion to weigh the competing
evidence and make appropriate findings of fact.22   The state also
points to the boards conclusion that Groom misled his doctors.
          In  addressing these competing arguments, we  begin  by
noting again that the proceedings leading up to the boards  final
decision  in  2003 addressed two distinct injury reports:  Grooms
original  claim for benefits related to his March 13,  1999  slip
and fall and his subsequent claims that the continuous shoveling,
standing, and performing of his regular duties as a weigh station
operator had aggravated his underlying lymphedema.  With  respect
to  both  sets  of  claims, Groom asserted that his  work-related
injuries  had  resulted in permanent total disability.   Although
the  board  joined  the claims for purposes of  the  hearing,  it
continued to describe them as separate claims.23
          After  conducting  the final hearing on  those  claims,
          however, the board issued a decision that conflated its
procedural  analysis  of  the alleged  injuries  and  claims  for
benefits.   As to both sets of claims, the state had controverted
not  just  the  issue  of  whether Grooms  current  problem  with
lymphedema  amounted to a permanent disability, but also  whether
his  disability, even if it was permanent and total, stemmed from
injuries  that  were related to Grooms work for the  state.   The
boards 2003 decision completely rejected both sets of claims on a
single,  overarching theory: that Groom had failed  to  meet  his
burden of proving the existence of any work-related injury.   Yet
the  board reached this decision through a flawed application  of
the   three-step  test  used  to  determine  whether  a  claimant
ultimately  bears  the  burden of proof  on  the  issue  of  work
          In   analyzing  this  point,  the  board   started   by
acknowledging  that  Groom had met the threshold  requirement  of
establishing a preliminary link to activate the presumption  that
he  was  permanently and totally disabled.  The board then turned
to  the second step of the analysis, asking whether the state had
produced   adequate   evidence  to  rebut  the   presumption   of
compensability.    In   conducting  this   inquiry,   the   board
articulated the following test:
          There  are  two  methods  of  overcoming  the
          presumption of compensability: (1) presenting
          affirmative   evidence   showing   that   the
          employee does not suffer permanent and  total
          work-related  disability; or (2)  eliminating
          all   reasonable   possibilities   that   the
          employee  is permanently totally disabled  or
          that the disability is work-related.
(Citations omitted.)
          We  assume  for purposes of this discussion  that  this
standard  might  suffice to establish whether the presumption  of
compensability had been overcome in a case where the existence of
a  work-related  injury was undisputed, and  the  only  contested
issue  was  whether  the  injury had resulted  in  the  claimants
permanent total disability.24  But in this case, as already noted,
the  state  insisted that Grooms current problems with lymphedema
were  not  work related even if they might have been  permanently
and totally disabling.
          We   have   articulated  the  following  standard   for
determining  whether an employer has rebutted the presumption  of
compensability  when  a  claim  for  permanent  total  disability
involves  a  dispute as to both the existence of  a  work-related
injury  and whether that injury, if it exists, renders the worker
permanently and totally disabled:
          In   order   to  rebut  the  presumption   of
          compensability,  the  employer  must  produce
          substantial evidence that the injury was  not
          work  related.  The employer may do  this  in
          two  ways: by producing substantial  evidence
          that  (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.[25]
In this case, after the board determined that Groom had triggered
the presumption of compensability, the board focused its analysis
of whether the state had rebutted that presumption exclusively on
whether  the state had presented evidence to refute the existence
of  a  permanent total disability.  According to the  board,  Dr.
Pitzers  testimony  that  Groom could  return  to  employment  in
positions  that  do  not require significant physical  effort  or
expose  the  employee  to  contusion or other  physical  stresses
sufficed to rebut the presumption.
          This  finding  ended the boards inquiry at  the  second
step  of  the process and led it to conclude that Groom bore  the
burden  of proving his claims by a preponderance of the evidence.
Yet  because the board had never inquired whether the  state  had
overcome   its   burden   of   rebutting   the   presumption   of
compensability  with regard to the existence  of  a  work-related
injury, the board incorrectly treated Groom as having the  burden
to  prove  both the existence of a permanent disability  and  the
work relatedness of his injuries.  Conversely stated: Dr. Pitzers
testimony  that Groom was capable of returning to  work  arguably
might  have  sufficed to rebut the presumption that  he  suffered
from  a compensable permanent total disability; but his testimony
did  nothing to rebut the related presumption that Groom suffered
from   a   compensable,   work-related  partial   disability    a
presumption  the board mistakenly deemed this testimony  to  have
          The  state nevertheless argues that, despite the boards
failure to address the question of work relatedness when it ruled
that  the  state had met its burden of overcoming the presumption
of  compensability,   the  boards  decision  should  be  affirmed
because  the  testimony of Dr. Szuba in combination  with  Grooms
medical  records actually did rebut the presumption on the  issue
of the work relatedness.26  Specifically, the board relied on: (1)
Dr.  Szubas  testimony at the June 2002 hearing that  Grooms  job
would  not  have  aggravated his condition if  his  work  was  as
described by his co-workers; and (2) Dr. Szubas statement in  his
deposition  acknowledging that he would change his  opinion  that
Grooms  work  worsened his condition if Grooms work actually  did
not involve very much snow shoveling or prolonged standing.
          Dr.  Szubas  testimony does not rebut  the  presumption
that  Groom was permanently and totally disabled as a  result  of
his  slip and fall.  The evidence that the board relied on in its
finding that Groom had not proven his case by a preponderance  of
the  evidence related only to the prolonged standing and  general
work  duties  claim.  It is unrelated to his claim based  on  the
slip  and  fall.  Thus, it cannot serve as a basis for  rebutting
the  presumption that Groom was permanently and totally  disabled
as a result of the slip and fall.
          The   evidence  is  also  insufficient  to  rebut   the
presumption that Grooms other injuries were work related.27   Dr.
Szuba  never  expressed the opinion that Grooms work  was  not  a
          substantial factor in causing his disability.28  The testimony
cited  by the board establishes that Dr. Szubas conclusions  were
contingent  on  his understanding of Grooms work  conditions;  if
Grooms  work requirements were not as Groom described, Dr.  Szuba
testified that his opinions would have to be revised:
          Q:   If,  in  point of fact, Mr. Grooms  work
               did  not involve prolonged standing, and
               did   not   involve   very   much   snow
               shoveling,   would  that   change   your
               opinion  whether his work  worsened  his
          A:   Yes, it would.
It  is  not at all clear from the deposition transcript what  Dr.
Szuba understood the questioners prolonged and very much terms to
mean.29   Also,  only  if  read  in  isolation  can  Dr.   Szubas
affirmative response in this exchange be taken to mean  that  the
doctor  felt  that  lighter duties posed absolutely  no  risk  of
injury  to  Groom.  Elsewhere Dr. Szuba made it clear  that  snow
shoveling of any frequency could prove injurious:
          Q:   And  would  would the action of standing
               upright  and shoveling snow  worsen  Mr.
               Grooms   condition  regardless  of   the
               frequency with which he had to do it?
          A:   Yes, it would.
          The  board also noted that Dr. Szuba testified in  June
2002 that if Grooms work was as described by his co-workers, then
he  would  find the position acceptable for someone  with  Grooms
condition;  but Dr. Szuba qualified this opinion by  adding  that
Groom  would  also  need  proper  medical  garments.   Dr.  Szuba
testified at the same hearing that he still believed that  Grooms
employment  with the state was a substantial factor  in  bringing
about  his  need for medical treatment and that this opinion  was
established  independently  of what  Groom  told  him.   He  also
reaffirmed his opinion that Grooms employment with the state  was
a substantial factor in bringing about Grooms inability to work.
          In short, Dr. Szubas testimony can at best be described
as  equivocal  or  internally inconsistent.   In  addressing  the
adequacy    of   medical   evidence   offered   under   analogous
circumstances, we have previously held that when the substance of
a  particular witnesss testimony is in doubt, any doubt should be
resolved in favor of a workers compensation claimant.30   Because
of the irreconcilable ambiguity of Dr. Szubas opinions, any doubt
as  to  their  meaning must be resolved in Grooms  favor.   As  a
result,  they did not provide substantial evidence to  rebut  the
presumption  of  compensability as to work  relatedness  in  this
     D.   Statute of Limitations
          In  its appellate briefing the state argues, as it  did
below,  that whether Grooms snow shoveling and prolonged standing
claims   were  meritorious,  they  are  barred  by  the   Workers
Compensation Acts two-year statute of limitations.31  Because the
board  denied  Grooms claims on the merits, neither  it  nor  the
superior court addressed this issue.
          We  have  adopted  a  discovery  rule  for  statute  of
limitations  questions  in  the workers  compensation  context.32
Under  this rule, the limitations period will begin to run  on  a
claim only when a claimant knows:  (1) that he has an injury; (2)
that  his  injury is related to his employment; and (3) that  his
injury  has  resulted  in a disability.33  Precisely  when  Groom
became aware of his alleged snow shoveling and prolonged standing
injuries was not resolved by the board.  The record suggests that
the  discovery might not have occurred until Dr. Szuba  submitted
his  report to the board.  Because it is not our role  to  settle
disputed  or disputable factual claims,34 we cannot resolve  this
issue.   On  remand,  the  board remains  free  to  make  factual
determinations relevant to the statute of limitations issue.35
          In  deciding Grooms claims, the board made  two  errors
that require reversal.  First, it gave no notice to Groom that it
might reconsider its earlier factual finding that he had suffered
a  compensable  slip-and-fall injury  on  March  13,  1999.   Due
process  requires,  at  a minimum, some notice  of  what  may  be
decided  so  that  a  party has the opportunity  to  prepare  and
present  his  case.   Second, the board used  an  improper  legal
standard  in  finding that the state had rebutted the presumption
of  compensability.   We  therefore REVERSE  the  superior  court
decision  affirming  the boards decision and REMAND  for  further
proceedings consistent with this opinion.
     1    AS 23.30.120, Presumptions, provides, in relevant part:

          (a)  In a proceeding for the enforcement of a
          claim for compensation under this chapter  it
          is  presumed,  in the absence of  substantial
          evidence to the contrary, that
               (1)    the   claim  comes   within   the
          provisions of this chapter;
               (2)   sufficient notice of the claim has
          been given;
               (3)   the  injury  was  not  proximately
          caused  by  the intoxication of  the  injured
          employee   or  proximately  caused   by   the
          employee  being under the influence of  drugs
          unless the drugs were taken as prescribed  by
          the employees physician;
               (4)   the  injury was not occasioned  by
          the  wilful intention of the injured employee
          to injure or kill self or another.
     2     DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000);
Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896,
903 (Alaska 1987).

     3     Alyeska  Pipeline Serv. Co. v. DeShong, 77 P.3d  1227,
1231 (Alaska 2003).

     4     Grove v. Alaska Constr. & Erectors, 948 P.2d 454,  456
(Alaska  1997)  (quoting Miller v. ITT Arctic  Servs.,  577  P.2d
1044, 1046 (Alaska 1978)).

     5    Id.

     6    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     7    AS 23.30.130, Modification of awards, provides:

          (a)   Upon  its own initiative, or  upon  the
          application of any party in interest  on  the
          ground  of a change in conditions, including,
          for the purposes of AS 23.30.175, a change in
          residence,  or  because of a mistake  in  its
          determination  of  a  fact,  the  board  may,
          before  one year after the date of  the  last
          payment  of  compensation benefits  under  AS
          23.30.180,  23.30.185, 23.30.190,  23.30.200,
          or  23.30.215, whether or not a  compensation
          order  has  been issued, or before  one  year
          after  the  rejection of a  claim,  review  a
          compensation   case   under   the   procedure
          prescribed   in   respect   of   claims    in
          AS  23.30.110.  Under AS 23.30.110 the  board
          may  issue  a  new compensation  order  which
          terminates, continues, reinstates, increases,
          or   decreases  the  compensation,  or  award
          (b)  A new order does not affect compensation
          previously   paid,  except  that   an   award
          increasing the compensation rate may be  made
          effective from the date of the injury, and if
          part of the compensation due or to become due
          is    unpaid,   an   award   decreasing   the
          compensation rate may be made effective  from
          the  date  of  the injury, and  payment  made
          earlier in excess of the decreased rate shall
          be  deducted from the unpaid compensation, in
          the manner the board determines.
     8      AS  23.30.110,  Procedure  on  claims,  provides,  in
relevant part:

          (c)  Before a hearing is scheduled, the party
          seeking a hearing shall file a request for  a
          hearing  together  with an affidavit  stating
          that   the   party  has  completed  necessary
          discovery,  obtained necessary evidence,  and
          is  prepared  for the hearing.   An  opposing
          party  shall  have 10 days after the  hearing
          request  is filed to file a response.   If  a
          party  opposes the hearing request, the board
          or  a board designee shall within 30 days  of
          the  filing  of  the  opposition  conduct   a
          pre-hearing  conference  and  set  a  hearing
          date.   If opposition is not filed, a hearing
          shall  be  scheduled no later  than  60  days
          after  the  receipt of the  hearing  request.
          The  board shall give each party at least  10
          days notice of the hearing, either personally
          or  by  certified mail.  After a hearing  has
          been scheduled, the parties may not stipulate
          to  change  the  hearing date or  to  cancel,
          postpone, or continue the hearing, except for
          good cause as determined by the board.  After
          completion  of  the hearing the  board  shall
          close  the  hearing record.  If a  settlement
          agreement is reached by the parties less than
          14 days before the hearing, the parties shall
          appear  at the time of the scheduled  hearing
          to   state   the  terms  of  the   settlement
          agreement.  Within 30 days after the  hearing
          record  closes,  the  board  shall  file  its
          decision.   If  the  employer  controverts  a
          claim  on  a  board-prescribed  controversion
          notice  and the employee does not  request  a
          hearing within two years following the filing
          of  the  controversion notice, the  claim  is
     9     Dresser Indus., Inc./Atlas Div. v. Hiestand, 702  P.2d
244 (Alaska 1985).

     10     Matanuska  Maid, Inc. v. State,  620  P.2d  182,  192
(Alaska 1980).

     11     North State Tel. Co. v. Alaska Pub. Util. Commn,  522
P.2d 711, 714 (Alaska 1974).

     12    Id.

     13     See  Dresser,  702  P.2d at  247.   Although  Dresser
involved  a modification, the board regulations about notice  and
prehearing  procedure are the same for petitions and  claims.   8
Alaska   Administrative  Code  (AAC)  45.060;   8   AAC   45.065;
8 AAC 45.070 (2004).

     14    8 AAC 45.065 (2004); 8 AAC 45.070(g) (2004).

     15    8 AAC 45.070(g) (2004).

     16    Dresser, 702 P.2d at 247.

     17    Elsewhere, the state referred to the finding as settled
law of the case:

          As you pointed out, it was a traumatic injury
          that was alleged.  And, yes, we defended  it.
          It  went to the superior court.  There is law
          of the case about what did or didnt happen to
          Mr. Grooms calf on that day.
     18    State, Commercial Fisheries Entry Commn v. Carlson, 65
P.3d 851, 859 (Alaska 2003) (quoting Patrick v. Sedwick, 413 P.2d
169,  173-74  (Alaska  1966) and Alaska Diversified  Contractors,
Inc.  v.  Lower Kuskokwim Sch. Dist., 778 P.2d 581,  583  (Alaska

     19    Matanuska Maid, 620 P.2d at 193.

     20    She testified by telephone at the second hearing.

     21    We note that the state did not consistently try to keep
the  two  claims separate in prehearing procedure,  either.   For
example, in a June 22, 2000 prehearing conference on Grooms slip-
and-fall claim, the state indicated that it might want to  pursue
discovery  on  the  snow  shoveling  activities.   Also,  in  its
opposition to Grooms July 2000 affidavit of readiness for hearing
on  the permanent total disability claim, the state said that  it
needed  to  complete  discovery  about  the  nature,  scope,  and
physical  demands  of  Grooms work  both  generally  and  in  the
specific  period  leading up to the alleged  temporary  total  or
permanent total disability period(s).

     22     Cf. Kodiak Oilfield Haulers v. Adams, 777 P.2d  1145,
1151  (Alaska 1989) (The Board may base its decision not only  on
direct  testimony, medical findings, and other tangible evidence,
but also on the Boards experience, judgment, observations, unique
or  peculiar facts of the case, and inferences drawn from all  of
the  above.)  (quoting  Fairbanks N. Star  Borough  v.  Rogers  &
Babler, 747 P.2d 528, 533-34 (Alaska 1987)).

     23     The  boards  regulation concerning  joinder  provides
little  guidance about joinder of claims.  It provides that  when
claims are joined, documentary evidence is considered part of the
record in each of the joined cases.  8 AAC 45.040(k)(3).

     24    With regard to the adequacy of the standard articulated
by  the  board, we note that, even in cases involving claims  for
permanent total disability in which an employer presents evidence
suggesting that an injured worker is not completely incapable  of
returning to some kind of work, the employer bears the additional
burden  of further showing that there is regular and continuously
available  work in the area suited to the employees capabilities,
i.e.,  that  [the employee] is not an odd lot worker.   Leigh  v.
Seekins Ford, 136 P.3d 214, 216 (Alaska 2006) (citing Carlson  v.
Doyon Universal-Ogden Servs., 995 P.2d 224, 227 (Alaska 2000)).

     25     DeYonge  v.  NANA/Marriott, 1 P.3d 90, 95-96  (Alaska

     26     The  state  additionally contends  that  Dr.  Pitzers
testimony  overcame  the  presumption  of  work  relatedness   by
establishing that Grooms condition progressively worsened even in
the  absence  of work stresses and worsened from Grooms  lack  of
self-care.  But since Grooms work conditions might have  worsened
his  lymphedema  regardless of whether he  was  adequately  self-
treating,  this  testimony could not have ruled out  work-related
aggravation.  Accordingly, only the states contentions concerning
Dr.  Szubas testimony arguably might support an ultimate  finding
that Groom suffered no work-related injury.

     27    Safeway, Inc. v. Mackey, 965 P.2d 22, 27 (Alaska 1998)
(The  issue of whether there is substantial evidence to  overcome
the  presumption  is  a  question of law which  this  court  will
independently examine.).

     28    See Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska

     29     At  the hearing in June 2002 Dr. Szuba said  that  he
would  consider prolonged standing to be more than an hour  at  a
time.  He also testified that some lymphedema patients will swell
in  as  little  as  fifteen minutes.  The board made  no  finding
regarding the maximum amount of time Groom was required to  stand
in performing his work duties.

     30     Miller  v.  ITT Arctic Servs., 577  P.2d  1044,  1048
(Alaska 1978).

     31     AS 23.30.105, Time for filing of claims, provides, in
relevant part:

          (a)  The right to compensation for disability
          under  this chapter is barred unless a  claim
          for  it  is filed within two years after  the
          employee has knowledge of the nature  of  the
          employees disability and its relation to  the
          employment  and after disablement.   However,
          the  maximum time for filing the claim in any
          event   other   than  arising   out   of   an
          occupational disease shall be four years from
          the   date  of  injury[.]  .  .   .   It   is
          additionally provided that, in  the  case  of
          latent   defects  pertinent  to  and  causing
          compensable disability, the injured  employee
          has   full   right  to  claim  as  shall   be
          determined  by  the board,  time  limitations
          (b)   Failure  to  file a  claim  within  the
          period  prescribed in (a) of this section  is
          not a bar to compensation unless objection to
          the  failure is made at the first hearing  of
          the  claim  in which all parties in  interest
          are  given  reasonable notice and opportunity
          to be heard.
     32     See  Egemo  v. Egemo Constr. Co., 998 P.2d  434,  441
(Alaska 2000).

     33    Id.

     34    Cf. Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006):

          We  recognize  of  course that  an  appellate
          court  ordinarily  has  broad  authority   to
          affirm  a  trial courts ruling on  any  legal
          theory  established in the appellate  record.
          But  this  rule is not absolute. By  its  own
          terms, it applies only to issues of law  that
          find  support in settled facts. It  does  not
          extend to new theories that would normally be
          resolved     by     discretionary      powers
          traditionally  reserved  for   trial   courts
          powers relying on case-specific consideration
          of disputed or disputable issues of fact.
(Footnote omitted.)

     35    Groom has also argued that the state failed to present
labor  market  survey  evidence  as  ostensibly  required  by  AS
23.30.180(a) and failed to rebut the claim that Groom  is  merely
an  odd  lot  worker;  he  has suggested that  we  should  impose
penalties on the state pursuant to AS 23.30.155(e).  Our order of
a  remand  in  this case makes it unnecessary to  consider  these

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