Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

  This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Seybert v. Cominco Alaska Exploration (05/02/2008) sp-6256

Seybert v. Cominco Alaska Exploration (05/02/2008) sp-6256, 182 P3d 1079

     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

KENNETH J. SEYBERT, )
) Supreme Court Nos. S- 12085/12115
Appellant and )
Cross-Appellee, ) Superior Court No.
) 4FA-02-02283 Civil
v. )
) O P I N I O N
COMINCO ALASKA )
EXPLORATION and ALASKA ) No. 6256 - May 2, 2008
NATIONAL INSURANCE CO., )
)
Appellees and )
Cross-Appellants. )
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Raymond M. Funk, Judge pro tem.

          Appearances: James M. Hackett, Law Office  of
          James  M.  Hackett, Fairbanks, for  Appellant
          and  Cross-Appellee.  Robert  J.  McLaughlin,
          Mann,  Johnson,  Wooster & McLaughlin,  P.S.,
          Tacoma, Washington, for Appellees and  Cross-
          Appellants.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          EASTAUGH, Justice.


     

I.   INTRODUCTION
          Kenneth  Seybert injured his neck while he was  working
as  a  millwright for Cominco Alaska at the Red Dog Mine in 1992.
He  had  two surgeries and, after a physician determined  he  was
medically  stable, was evaluated for reemployment  benefits.   In
January  1995  Seybert  and  Cominco executed  a  Compromise  and
Release  (C&R)  to  settle Seyberts workers  compensation  claim.
Seybert  was not represented by counsel.  The C&R identified  two
disputes:  (1) whether Seybert could change physicians,  and  (2)
whether   the   reemployment  plan  developed  for  Cominco   was
appropriate.  Under the terms of the C&R Seybert was permitted to
change  physicians one time and received $30,000 for  all  claims
except  future  medical benefits.  In 2000  Cominco  controverted
Seyberts   prescription  claims.   In  May  2001   Seybert,   now
represented  by  counsel, asked the Alaska  Workers  Compensation
Board  to set aside the C&R.  After a hearing on his request  the
board  refused  to set aside the agreement.  The  superior  court
affirmed  the  board in all respects.  On appeal  Seybert  raises
numerous issues related to the board proceedings; Cominco  cross-
appeals  a  superior court order remanding the case to the  board
during  the  pendency of the superior court appeal.  Because  the
board  applied  an  incorrect legal standard  when  it  evaluated
Seyberts misrepresentation claim, we reverse the boards denial of
Seyberts petition to set aside the C&R and remand the case to the
board  for  further  proceedings.  We find no merit  in  Comincos
cross-appeal  and affirm the superior courts decision  to  remand
the case to the board for evaluation of one of Seyberts claims.
II.  FACTS AND PROCEEDINGS
          In1992  Kenneth Seybert was living in Elko,  Nevada,  a
town  in  northeast Nevada about equidistant from  the  Utah  and
Idaho  borders.  He had worked as a millwright at  various  mines
for  the previous ten years.  Seybert worked for Cominco  at  the
Red  Dog  Mine near Kotzebue as a millwright in early 1992.   His
work  schedule was twenty-eight days on and fourteen  off.   Near
the  end of his second rotation at the mine, he injured his  neck
at  work.   He  was  rebuilding a pump  and  had  positioned  the
discharge  end  with  a forklift.  Because  it  was  not  aligned
correctly, Seybert used a pry bar to push the discharge end  into
proper position.  While he was pushing on the pry bar, he reached
to  get a bolt; the weight shifted, and he felt his neck pop.  He
immediately felt pain and went to the clinic on site at the  mine
during  his  shift  that night.  The medic on staff  diagnosed  a
probable  shoulder muscle injury and prescribed  pain  medication
and  a  muscle  relaxant.  Seybert worked a few  days  after  the
injury  to  complete his rotation, even though  he  continued  to
experience pain.
          In  late  April  1992 Seybert went  to  see  Dr.  Alvin
Wirthlin,  a  neurologist in Salt Lake City,  Utah,  the  closest
large  city to Elko.  Dr. Wirthlin determined that Seybert had  a
cervical  spine  injury and referred him to a  neurosurgeon,  Dr.
Charles  Rich.  Dr. Rich operated on Seyberts cervical  spine  in
May.   At  about the same time, Seybert requested an  eligibility
evaluation for reemployment benefits in case [he] need[ed] it. In
June the Reemployment Benefits Administrator (RBA) sent Seybert a
letter  and requested medical reports that predicted a  permanent
physical  impairment.   No  one  took  further  action   on   the
reemployment benefits request at that time.
          Seybert  stayed in treatment with Dr. Rich for  several
months.  Seybert saw Dr. Hilari Fleming, another neurosurgeon, in
Reno,  Nevada  for  a second opinion after Dr. Rich  suggested  a
second  surgery.  After a course of conservative therapy with  no
improvement, Dr. Fleming also recommended a second  surgery.   At
that  point  Dr.  David  Dapra conducted an  independent  medical
evaluation  (IME)  on  behalf  of  Cominco  and  Alaska  National
Insurance Co., Comincos workers compensation insurer.1  Dr. Dapra
disagreed  with  Dr.  Flemings diagnosis and recommended  against
surgery.   After  an Alaska National nurse reviewed  the  medical
reports, Alaska National authorized the surgery with Dr. Fleming.
          In   May  1993  Dr.  Fleming  wrote  that  Seybert  had
sustained  a  permanent partial impairment as  a  result  of  his
injury  and  would  not  be able to do  heavy  lifting  or  other
repetitive  heavy  work.   About a month later,  Alaska  National
asked  the  RBA  to  refer  Seybert for a  reemployment  benefits
eligibility evaluation.  Seybert had his second neck  surgery  in
July  1993.   In  late July he was referred to  a  rehabilitation
services  office  in  Reno  for an eligibility  evaluation.   Dr.
Fleming  wrote  to  the  rehabilitation specialist  working  with
Seybert that Seybert would be limited to light or sedentary  work
in  the future.  The rehabilitation specialist recommended to the
RBA  that  Seybert  be found eligible for reemployment  benefits.
After  the  RBA  found him eligible for benefits,  Seybert  chose
Jacqueline  Christensen of Reno as his rehabilitation specialist.
Christensen began an assessment of Seybert but did not complete a
reemployment plan for him.
          After  the  second surgery, Seybert reported  that  his
pain  was  as  bad, if not worse, than before  the  surgery.   In
November  1993  Dr. Fleming recommended that  he  attend  a  pain
management program.  Alaska National referred Seybert to the pain
clinic  at Virginia Mason Medical Center in Seattle.  Dr. Fleming
apparently  agreed  to  this pain clinic, although  she  did  not
select it.  Alaska National specifically requested that two  care
providers at Virginia Mason, Drs. Thomas Williamson-Kirkland  and
Steven  Fey,  provide  services  to  Seybert.   The  reemployment
efforts  were  held  in  abeyance  until  Seybert  completed  the
program.
          The  pain  management clinic did not  resolve  Seyberts
pain  complaints.   Seybert attended the  outpatient  program  at
Virginia  Mason  for  about four weeks.  Dr.  Williamson-Kirkland
believed  that  Seyberts main problem was anger  at  having  been
injured and consequently not being able to continue at his  prior
high level of pay.  At the end of the pain management clinic, Dr.
Williamson-Kirkland  stated  that  Seybert  had  reached  medical
stability  and  had  a whole person permanent partial  impairment
(PPI)  rating  of  twenty-eight percent.2   After  receiving  Dr.
Williamson-Kirklands report and discussing it  with  him,  Alaska
National determined that Seybert needed no further treatment  and
advised   Seybert  of  this  by  telephone.   Seybert  filed   an
Application for Adjustment of Claim and a supplemental  statement
with  the  Alaska Workers Compensation Board on about  March  30,
1994.  Alaska National filed an answer on May 3, 1994.
          After  completing the pain management program,  Seybert
returned  to Elko.  While he was in Elko, Seybert went  twice  to
consult  with Dr. Terry Nevins for neck pain.  At that  point  it
appears  that  Dr. Flemings office did not feel it could  provide
Seybert  with further treatment because he did not have  surgical
needs.   Alaska Nationals attorney, Robert McLaughlin,  wrote  to
Dr. Nevins on May 24, 1994.  In his letter he informed Dr. Nevins
that  Alaska National would be controverting his care of Seybert,
that  Seybert had seen too many physicians, and that  [b]oth  Dr.
Fleming  and Dr. Williamson-Kirkland have concluded that  further
medical  care is not indicated.  McLaughlin followed  up  with  a
phone  call.   Dr. Nevins wrote in the chart notes regarding  the
conversation  that  Mr. Seybert apparently has  quite  a  lengthy
history  of  seeing  numerous physicians.   In  late  May  Alaska
National  formally controverted the medical claims for  treatment
by  Dr.  Nevins.   Its controversion was based  on  an  excessive
number  of  changes  of physician and on Dr. Williamson-Kirklands
statement that no further medical treatment was necessary.
          Alaska   National   then   asked   another   vocational
rehabilitation  specialist  in Reno,  Ed  Howden,  to  prepare  a
reemployment plan.  Howden developed a reemployment plan  without
speaking to Seybert.  His plan was to retrain Seybert as a mining
or  environmental laboratory technician.  While the pay scale for
this  position was low at the beginning, Howden felt that  in  as
few as three years, the pay scale could be in the range of $15 to
$20 per hour.
          In  mid-June Christensen, the rehabilitation specialist
who  had  been working with Seybert, wrote to the RBA to  explain
her  delay  in  plan preparation.  According to  Christensen  the
delay   was   the  result  of  numerous  difficulties,  including
obtaining medical records from Virginia Mason and having  Seybert
tested in Elko.  In addition she stated that Alaska National  had
requested that she delay her report so that it could discuss  the
matter with Seybert, but it never got back in touch with her.  At
the time she filed her report with the RBA in June 1994, she felt
that  Seybert  would  not benefit from an immediate  reemployment
plan  because  he  was still having difficulty adjusting  to  his
injury  and  was experiencing significant pain.  She  recommended
some  type of interruption in his plan, if permitted, and if  the
plan  could  not  be  delayed,  she  thought  that  it  would  be
appropriate for the parties to consider settlement.
          At  about the same time Seybert and Linda Rudolph,  the
claims  adjuster for Alaska National, first discussed settlement.
Rudolphs  telephone log notes from June 2, 1994,  indicated  that
she would present Seybert with the options of either accepting  a
settlement  offer  or  contacting Howden to pursue  a  vocational
rehabilitation plan.  On June 7, 1994, Rudolph wrote to  Seybert,
making an offer as described in the log notes.  She gave him  the
option  of participating in vocational counseling with Howden  or
settling his permanent impairment claims for a lump sum.  Seybert
apparently  did  not receive this letter.  When  Alaska  National
tried  to  call  him  in  Elko on June  6,  his  phone  had  been
disconnected.
          In  late  May  1994 Seybert and his wife had  moved  to
Lincoln City, Oregon, about nine hundred miles from Elko, because
his  wife had found work there.  Before moving to Oregon  Seybert
had  applied  for  federal Social Security  disability  insurance
(SSDI)  benefits.   He  was found eligible on  August  26,  1994.
Seybert  told Alaska National in September 1994 that he had  been
found eligible for SSDI.
          During  the time he was in Oregon Seybert paid for  his
medical  care and prescriptions related to his neck pain  on  his
own.  Seybert remembered taking five prescription medications  in
1994 and early 1995.
           Alaska  National submitted Howdens vocational plan  to
the  RBA in July 1994.  The RBA reviewed the plan and denied  it.
An  informal conference about the reemployment plan was  held  in
October  1994.   Seybert,  McLaughlin,  and  the  two  vocational
counselors  from  Nevada participated by telephone.   Christensen
stated  at the conference that she did not think a plan could  be
written  for Seybert due to his pain, and Seybert explained  that
he  was  getting  SSDI and had permanently relocated  to  Lincoln
City.   At  the  end of the conference Alaska National  requested
that  its plan be reviewed with supplemental information that  it
had  supplied.   On  October 29, 1994, the  RBA  rejected  Alaska
Nationals reemployment plan and expressed concern that Howden had
not  met  with  Seybert to discuss job options.  On November  10,
1994,  Alaska  National petitioned the board to review  the  RBAs
decision  and  on November 14, 1994, asked the RBA to  reconsider
his  decision.   On  December 5, 1994,  the  RBA  reaffirmed  his
rejection  of  Alaska Nationals reemployment plan  and  suggested
that  another  rehabilitation specialist be assigned  because  of
Seyberts move to Oregon.
          While  the reemployment process continued, the  parties
discussed  settlement.   On  October  17,  1994,  Seybert  called
Rudolph  and said that he was interested in settling.   According
to   Rudolphs  notes,  Seybert  told  her  that  he  was   taking
amitript[y]line, pain meds., anti-inflam., etc.  and  was  paying
for them himself.  Her notes then show her calculations regarding
benefits for which Seybert might still be eligible, including PPI
benefits of $14,821.96 and subsection .041(k) benefits that would
total $25,163.32 for a year.3
          Alaska National paid for Seybert to see Dr. Fleming  in
Reno  on  November 3, 1994.  This was the first time Dr.  Fleming
had  seen Seybert in about a year.  Dr. Fleming examined  Seybert
and  concluded that he would need ongoing medical care, which she
was  not able to provide because he was living in another  state.
She informed Alaska National that she strongly recommend[ed] that
he  be allowed to find a physician in preferably the Portland  or
Salem area to follow up with him for his chronic pain problems.
          Alaska  National next proposed settlement in a December
2,  1994  letter Rudolph sent to Seybert.  In the letter  Rudolph
told  Seybert  that he had three remaining benefits available  on
his  claim: (1) reemployment benefits; (2) PPI benefits; and  (3)
medical   benefits.   She  expressed  the  opinion  that   Alaska
Nationals  reemployment  plan was appropriate  and  that  Seybert
would  be  required to cooperate with the plan.   She  said  that
Seybert was entitled to further medical care as the result of his
          injury but that he had already made a number of physician changes
and  had  used  up [his] statutory allowance of physicians.   She
told him that the total of the remaining benefits payable to  him
was  $18,890.72;4 she offered to settle his claims  for  $25,000,
minus  any  PPI benefits paid from November 27, 1994,  until  the
date  of  board approval of the settlement and, as  part  of  the
settlement, to permit him to select a new physician in his  local
area.
          Seybert rejected this offer.  Rudolph recorded that  on
December  7, 1994, Seybert requested $50,000 to settle the  claim
because  he had lost [his] livelihood, everything.  He also  told
her  that he might be moving again.  Alaska National then decided
to  offer  $30,000.   On  December 27,  1994,  Rudolph  wrote  to
Seybert,  offering to settle his workers compensation  claim  for
$30,000,  with  no deduction for ongoing PPI if Seybert  returned
the  settlement  documents to Alaska National  within  ten  days.
Seybert  would also be allowed to select a new physician  in  his
local  area, and Alaska National would be responsible for further
medical  care with that physician in accordance with  the  Alaska
Workers Compensation statutes.  She told him that the offer would
remain  open until January 9, 1995.  On January 6, 1995, after  a
long discussion with Rudolph, Seybert agreed to the settlement as
offered.
          McLaughlin   drafted  and  sent  Seybert  a  settlement
agreement   for   his   signature.   The   settlement   agreement
specifically waived two benefits that had not been discussed with
Seybert   during   settlement   negotiations:   permanent   total
disability  (PTD)  benefits and benefits under  AS  23.30.041(k).
Seybert  signed  the agreement on January 23; the settlement  was
approved by the board without a hearing on February 14.
          In  early  1995  Seybert moved to Butte,  Montana.   He
began  treatment with Dr. Gary Cooney, a neurologist in Missoula,
Montana in the spring of 1995.  Dr. Cooneys report indicated that
in  his  opinion,  Seybert was totally disabled.   He  prescribed
medication and a heating pad to provide symptomatic relief.   Dr.
Cooney continued to treat Seybert with pain medications.
          In  April 2000 Alaska National sent Seybert to  Seattle
for  an  IME  with Drs. Williamson-Kirkland and Fey  at  Virginia
Mason.   Their report concluded that Seybert was taking too  many
narcotic  pain  medications,  that  Dr.  Cooney  should  decrease
Seyberts  narcotics, and that the only medications  that  Seybert
should  be taking were Trazodone, an antidepressant to  help  him
sleep,  and  Zantac for gastroesophageal complaints.   They  also
stated  that  Seybert  should have no further  medical  treatment
related  to  his  neck.   Alaska National  controverted  Seyberts
medical care in May 2000, claiming that the only medications that
Seybert  should take were Trazodone and Zantac.  Alaska  National
wrote  that it would support a detoxification program recommended
by   Seyberts  treating  physician.   Seybert  filed  a   workers
compensation  claim in July 2000; he attached a  long  letter  in
which  he  requested a hearing, alleged that Rudolph had promised
him  lifetime  medical  benefits and that  he  was  coerced  into
signing  the  settlement, and complained  about  the  doctors  at
Virginia Mason.
          In  May 2001 Seybert, now represented by counsel, filed
a  workers compensation claim, asking the board to set  aside  or
modify the C&R based on misrepresentation and/or fraud.  He  also
sought  PTD benefits.  After filing the request to set aside  the
C&R,  Seybert subpoenaed a complete copy of the insurers file  on
his  claim, as well as any documents kept in the ordinary  course
of  business  identifying  contacts with  him  by  the  insurance
company  or any of its representatives.  Alaska National did  not
provide  the complete file.  It removed correspondence and  notes
related  to communications between it and its attorney,  claiming
privilege.  It also did not produce the reserve sheets or serious
loss  reports, which showed the carriers potential  liability  on
the claim.
          Seybert moved to compel production of the parts of  the
file that had been withheld.  The board held a hearing on May 16,
2002  on Seyberts petition to set aside the C&R and his discovery
motion.    Seybert  and  his  daughter  testified  by  telephone.
Seybert testified that he had to pay for medical expenses out  of
pocket  in  Oregon  and that this caused  hardship  to  him.   He
testified  that during the settlement negotiations, both  Rudolph
and  McLaughlin  told him that he did not need an  attorney.   He
testified  that he did not understand that he would be giving  up
his weekly compensation checks when he signed the agreement.   He
also  testified  that Rudolph told him he could not  get  medical
care  unless  he  signed the agreement.   He  said  that  no  one
discussed PTD benefits with him even though he told Rudolph  that
he  did not think he was capable of working.  He related that  he
was  in  a  lot of pain and became upset after he found out  that
McLaughlin had contacted Dr. Nevins.
          Rudolph  testified for Alaska National.  She  indicated
that  she  was  in  no  hurry to settle the claim  and  that  she
believed  that  Seybert was not entitled  to  another  change  of
physician.   She  also testified about the circumstances  of  the
development  of Howdens vocational rehabilitation  plan  and  the
settlement negotiations.
          At  the  end  of the hearing the board denied  Seyberts
requests  to  compel discovery.  It decided  that  it  would  not
abrogate  the  attorney-client privilege  because  there  was  no
compelling  reason to do so.  It refused to compel production  of
the  reserve information because it found it was not relevant  to
its decision.
          In  its  decision  of May 31, 2002,  the  board  denied
Seyberts  request  to  set aside the C&R.  Using  definitions  of
duress and fraud from prior board decisions, the board found that
Seybert  had  failed to prove by a preponderance of the  evidence
that  Alaska  National  engaged in fraud or misrepresentation  in
negotiating  the  C&R.5  The board specifically  determined  that
Seyberts claims that he did not understand the terms of  the  C&R
and  that McLaughlin had repeatedly contacted him at the time  of
the  C&R  were not credible.  It also found no credible, specific
evidence  of misrepresentation or fraud or duress by the employer
to coerce the employee to sign the C&R.  Finally, the board found
that the employers attorney and insurer owed no fiduciary duty to
the employee.
          Seybert asked for reconsideration; the board decided to
reconsider for the limited purpose of looking at whether there is
a  fiduciary  relationship  between the  insurer  and  a  workers
compensation  claimant.  The board decided  after  argument  that
there  is  no  such  fiduciary duty; it  interpreted  the  Alaska
Workers  Compensation Act as setting up an adversarial system  to
decide  claims.  The board therefore reasoned that the  employees
interest is in conflict with the employers; because the insurance
contract is between the insurer and the employer, there can be no
fiduciary relationship between the employee and the insurer.   It
therefore affirmed its earlier decision.
          Seybert appealed to the superior court, where he  asked
the court to permit him to supplement or clarify his statement of
points on appeal to include an explicit claim that the C&R should
be  set aside because no one informed him of his right to request
a  second independent medical evaluation (SIME).6  He argued that
because he testified at the hearing about the issue, it had  been
properly  raised.   Alaska National opposed the  motion,  arguing
that the issue had not been properly raised before the board  and
that  granting  the  motion would cause  undue  delay.   After  a
hearing  on the motion, the superior court stayed the appeal  and
remanded the case to the board so that Seybert could raise claims
related to an SIME.
          The  board  held another hearing on April 8,  2004,  to
consider  the  issues  identified in the superior  courts  remand
order.   In its April 23, 2004 decision the board found that  the
right  to  an  SIME had not been triggered because there  was  no
dispute  between  the  employers and  employees  physicians.   It
further  found  that Seybert had waived procedural,  as  well  as
substantive, rights when he signed the C&R and that  one  of  the
rights   he   waived  was  the  right  to  an  SIME.    It   took
administrative notice that all injured workers were, at the  time
of Seyberts claim, mailed a copy of Workers Compensation and You,
a booklet containing a condensed but comprehensive description of
substantive  and  procedural  rights  under  the  Alaska  Workers
Compensation  Act, including a description of SIMEs.   The  board
found that the parties chose to proceed in a non-adversarial  way
rather  than pursue their claims through the hearing process  and
that  the  1995 board that approved the C&R declined to order  or
instigate   adversarial  procedures.   The  board  later   denied
Seyberts request for reconsideration of this decision.
          The superior court affirmed the boards decisions in all
respects.   It  agreed with the board that there was  no  dispute
between  the  two doctors such that an SIME was  necessary.7   It
further held that Seyberts March 2004 request for an SIME8 was an
attempt  to  create a dispute that did not exist  previously  and
that  Dwight  v.  Humana  Hospital Alaska9  did  not  require  an
explicit  waiver  of  the  right to an  SIME  in  all  cases  and
specifically  did not require one in Seyberts case.   It  decided
that there was substantial evidence in the record to support  the
boards  finding  that Seybert had not shown clear and  convincing
evidence  of fraud, misrepresentation, or duress.  It  determined
that while the insurer owed Seybert a duty of good faith, it  did
not  have a special or fiduciary relationship with him.  Finally,
          the superior court held that the board had not abused its
discretion  in  failing  to compel production  of  the  documents
Seybert requested.  The court reasoned that because the board had
determined that Seyberts claims of fraud were not credible, there
was no reason to abrogate the attorney-client privilege.  It also
upheld  the  boards refusal to compel production of  the  serious
loss reports and reserve sheets, finding them not relevant.
          Seybert appeals the denial of his petition to set aside
the  C&R,  as  well  as the boards refusal to  compel  discovery.
Alaska National cross-appeals the superior courts order remanding
the case to the board to consider the SIME issue.
III. DISCUSSION
     A.   Standard of Review
          In  a  workers  compensation appeal from  the  superior
court  we independently review the boards decision.10  We  review
questions  of law that do not involve agency expertise using  our
independent  judgment.11  When using this standard we  adopt  the
rule  of  law  that  is  most persuasive in light  of  precedent,
reason,  and  policy.12  For questions of  law  involving  agency
expertise  we  apply the reasonable basis test and defer  to  the
agencys  interpretation if it is reasonable.13  We review factual
findings  made  by  the  board  to  determine  whether  they  are
supported by substantial evidence.14  Substantial evidence is such
relevant  evidence as a reasonable mind might accept as  adequate
to  support  a  conclusion.15  The boards discovery  rulings  are
reviewed for an abuse of discretion.16  The superior courts remand
to  the board is also reviewed for an abuse of discretion.17   An
abuse  of  discretion  exists when we have a  definite  and  firm
conviction that a mistake has been made.18
     B.    Alaska  National  Had No Fiduciary  Relationship  with
Seybert.
          Seybert contends that because he was unrepresented when
the  C&R was negotiated and signed, Alaska National had a special
duty to him under 3 Alaska Administrative Code (AAC) 26.100.   He
maintains  that Alaska National breached that duty  by  requiring
him  to  travel to Seattle to attend the pain clinic at  Virginia
Mason and by failing to advise him of a variety of benefits  that
might  be  available to him.  Relying on a case from  Delaware,19
Seybert also asserts that he was a third-party beneficiary to the
insurance contract between Alaska National and Cominco, and as  a
third-party  beneficiary,  he  had a  special  relationship  with
Alaska  National.   The  board decided that  because  the  Alaska
Workers  Compensation  Act  creates an  adversarial  relationship
between an insurer and a workers compensation claimant, there was
no fiduciary relationship between Seybert and Alaska National.
          We have determined that a fiduciary relationship exists
when  one  imposes a special confidence in another, so  that  the
latter,  in equity and good conscience, is bound to act  in  good
faith  and  with due regard to the interests of the one  imposing
the  confidence.20   We have recognized a fiduciary  relationship
between  business partners, between attorneys and their  clients,
and in relationships involving trusts.21  We have also recognized
that   inherent  in  every  insurance  contract  is  a  fiduciary
relationship that gives rise to an implied covenant of good faith
          and fair dealing in execution of the contract.22  We refused to
recognize a fiduciary relationship between a contractor  and  the
owner  of  a home, however, because fiduciary duties are reserved
for relationships involving heightened levels of trust.23
          The  board  correctly determined here that because  the
Alaska  Workers  Compensation Act creates an adversarial  system,
and  because  Seyberts  and Alaska Nationals  interests  were  in
conflict, there was no basis for a fiduciary relationship between
Seybert and Alaska National.  Although 3 AAC 26.100 imposes  some
duties  on a workers compensation insurer, it does not  impose  a
fiduciary relationship.24  The regulation requires an insurer  to
provide  a  claimant  with assistance that is  reasonable  so  an
unrepresented  claimant can comply with the  law  and  reasonable
claims handling requirements.25  It also prohibits an insurer from
requiring  a  claimant to travel unreasonably for  medical  care,
rehabilitation   services,  or  any   other   purpose.26    These
requirements do not impose duties of loyalty and the disavowal of
self-interest  that  are hallmarks of a fiduciarys  role.27   The
workers compensation system is still an adversarial system, and a
fiduciary  relationship does not usually exist  between  opposing
parties in an adversarial system.
          Seybert  argues  that  Alaska  National  violated   the
regulation by requiring him to travel to Seattle to attend a pain
clinic.  Seyberts attendance at the pain clinic and the travel it
entailed  happened  months  before  the  parties  began   serious
settlement  negotiations.  His travel to Seattle does not  appear
to  be  relevant  to  the  issue of contract  formation  and  the
validity  of the C&R, and Seybert offered no argument or evidence
that  it  in fact influenced his decision to enter into the  C&R.
The board and the superior court did not err in disregarding this
rationale for setting aside the C&R.
          Alaska   National  also  did  not  have   a   fiduciary
relationship  with Seybert as a result of its insurance  contract
with  Cominco.   We  have recognized that an  insurance  contract
carries with it a fiduciary relationship between the insurer  and
the   insured.28   We  have  never  recognized  that  a   workers
compensation claimant is a third-party beneficiary to  a  workers
compensation insurance contract.  Seyberts simple assertion  that
he  is  a  third-party  beneficiary  to  the  contract  does  not
adequately  brief  the  issue, so  we  will  not  consider  it.29
However, even the Delaware Supreme Court, which held in Pierce v.
International   Insurance  Co.  of  Illinois   that   a   workers
compensation claimant is a third-party beneficiary to  a  workers
compensation  insurance  policy,  refused  to  find  a  fiduciary
relationship on the facts of that case.30
     C.   The Board Did Not Violate AS 23.30.012 when It Approved
the C&R.
          Seybert contends that the board violated statutory  and
regulatory  standards  in  approving the  C&R.   He  specifically
argues that the board violated former 8 AAC 45.160(a) because  it
failed to find by clear and convincing evidence that approval  of
the  settlement  would be in Seyberts best  interests.   He  also
argues that the board violated AS 23.30.012 by (1) not holding  a
hearing  or  requiring  an  impartial  medical  examination;  (2)
          approving a settlement that did not strictly comply with the
provisions  of  the  Alaska  Workers Compensation  Act;  and  (3)
approving  a  lump-sum  settlement without  a  showing  that  the
settlement was in Seyberts best interests.
          Alaska  Statute 23.30.012(b) provides that an agreement
about a claim:
          shall be approved by the board only when  the
          terms  conform  to  the  provisions  of  this
          chapter, and, if it involves or is likely  to
          involve  permanent disability, the board  may
          require an impartial medical examination  and
          a  hearing  in order to determine whether  or
          not to approve the agreement.[31]
          
Seybert contends that, because the medical and vocational records
showed  that  his  claim  was likely to involve  permanent  total
disability,  the board was required either to order an  impartial
medical examination or to hold a hearing.  This contention has no
merit.  Although medical and vocational records available to  the
board suggested that Seyberts claim could involve permanent total
disability,32  the  statutory  provisions  at  that   time   were
discretionary, not mandatory; the board could, in its discretion,
decide not to hold a hearing or order a medical examination.33
          Seybert  also  argues  that  the  settlement  did   not
strictly  comply  with  the  provisions  of  the  Alaska  Workers
Compensation  Act  in  that the settlement  did  not  contain  an
explicit  waiver  of his right to request an SIME.   But  because
there  was  no disagreement between Seyberts treating  physician,
Dr. Fleming, and an employers independent medical evaluation when
the  settlement was negotiated and signed, the board did not have
to  give Seybert explicit notice of his right to request an SIME,
and Seybert did not have to waive the right explicitly.34
          When  the  C&R was signed there may well  have  been  a
difference  of  opinion  between  Drs.  Fleming  and  Williamson-
Kirkland  about Seyberts need for continuing treatment after  the
pain  clinic.   Dr. Fleming wrote in November 1994  that  Seybert
required  continuing  medical treatment,  while  Dr.  Williamson-
Kirkland  apparently informed Alaska National in March 1994  that
Seybert no longer needed medical care related to his work injury.
But in 1994 and 1995 Dr. Williamson-Kirkland had not performed an
independent  medical  evaluation for Alaska  National;  in  fact,
Seybert  listed Dr. Williamson-Kirkland as an attending physician
on  his 1994 workers compensation claim.  Dr. Williamson-Kirkland
only  became an IME physician to Seybert in 2000, when  he  again
examined Seybert at the request of Alaska National.
          There  may  also have been a dispute about whether  the
reemployment  plan obtained by Alaska National  was  appropriate,
but  there was no dispute between an IME and a treating physician
about the plan.35  Dr. Dapras report cannot reasonably be read to
express   an  opinion  about  Seyberts  functional  capacity   to
participate  in  Alaska Nationals reemployment plan  because  Dr.
Dapra  never  examined  Seybert after  his  second  surgery,  his
completion  of  the  pain  clinic, and  the  development  of  the
reemployment plan.  Former AS 23.30.095(k) only applied if  there
          was a dispute between an attending physician and an employers
independent medical evaluation.36
          Seybert  also  maintains  that  the  board  abused  its
discretion in approving a lump-sum award.  At all times  relevant
here,  former AS 23.30.012 provided, The board may approve  lump-
sum settlements when it appears to be in the best interest of the
employee  or beneficiary or beneficiaries.37  Seybert  relies  on
cases  from other jurisdictions, which he claims show  a  general
rule that lump-sum settlements are disfavored.  The cases Seybert
relies on are distinguishable because they deal with commutations
of  ongoing  awards to lump-sum awards rather than the settlement
of claims.38  As Larson notes, commutation of an award is distinct
from  compromise of a claim.39  Here, the money Seybert  received
was  the result of a compromise of his claim, not the commutation
of an award into a lump sum.40
          Seyberts argument that the board could not approve  the
settlement absent a finding by clear and convincing evidence that
the  settlement  was in his best interests is also  unpersuasive.
Former 8 AAC 45.160(a) provided as follows:
          The  board  will review settlement agreements
          which provide for the payment of compensation
          due  or to become due and which undertake  to
          release  the employer from any or all  future
          liability.   Settlement  agreements  will  be
          approved  by the board only where  a  dispute
          exists  concerning the rights of the  parties
          or   where   clear  and  convincing  evidence
          demonstrates that approval would be  for  the
          best   interests  of  the  employee  or   his
          beneficiaries.
          
          Here,  the  parties disagreed, at a minimum, about  the
reemployment  plan  that  Alaska National  proposed.   Because  a
dispute  existed about the rights of the parties, the  board  did
not  need  to find by clear and convincing evidence that approval
would be in Seyberts best interests.
     D.   The   Board   Used  an  Incorrect  Legal  Standard   in
          Evaluating Seyberts Misrepresentation Claim.
          
          The  central issue in Seyberts appeal is his  assertion
that  the board erred in evaluating his claim that the C&R should
be  set  aside  because of fraud, misrepresentation,  or  duress.
Seybert  outlines  the  legal  standards  from  our  cases  about
contract  formation to argue that the board erred in  determining
that  there  was  no evidence of fraud or misrepresentation.   He
asserts  that  even  if  some of Rudolphs  statements  were  non-
fraudulent  misrepresentations, her statements  were  nonetheless
material misrepresentations, that he justifiably relied on  them,
and  that  as  a  result, the C&R should be  set  aside.   Alaska
National  contends  that the legal standard for  fraud  that  the
board  used  is virtually identical to the elements  set  out  in
Industrial  Commercial Electric, Inc. v.  McLees  for  voiding  a
contract for fraud.41
          The  board applied the following standard in evaluating
          Seyberts assertion that Alaska National had committed fraud in
negotiating the contract: We have determined fraud in the context
of  a C&R to be intentional misrepresentation, which induces  the
employee  to  sign the C&R in reliance on that misrepresentation.
It  found no credible, specific evidence of misrepresentation  or
fraud  or duress by the employer to coerce [Seybert] to sign  the
C&R.   The  board  made  no other specific  findings  related  to
Seyberts  fraud claim and did not articulate or apply a  separate
standard  for  misrepresentation.  Because the  board  looked  at
whether  there  was  an  intentional  misrepresentation  in   its
definition of fraud, we assume that the board analyzed any  claim
of misrepresentation as part of Seyberts fraud claim.
          We   have   previously  determined   that   a   workers
compensation  C&R is a contract and is subject to  interpretation
as any other contract.42  Standards of contract formation from our
common law therefore apply to formation and rescission of workers
compensation  settlement contracts to the extent these  standards
are  not  overridden by statute.43  Thus, even though a  personal
injury  settlement agreement may be set aside for  mistake,44  we
have  held  that  the workers compensation act  does  not  permit
avoidance  of a settlement contract based on mistakes of  fact.45
We  have  also  held, however, that the board  can  set  aside  a
settlement  agreement  based  on  fraud,46  and  the  board   has
interpreted the Alaska Workers Compensation Act as giving it  the
authority to set aside a settlement agreement on other  bases  as
well.47   Alaska National does not challenge the boards authority
to  set  aside  a C&R because of constructive fraud,  duress,  or
misrepresentation; it argues only that the board correctly  found
that  there  was no evidence of any wrongful behavior  by  Alaska
National.
          In  order  to  sue  in  tort  for  damages  related  to
misrepresentation, an injured party must establish  the  elements
of  fraudulent misrepresentation.48  For purposes of avoiding  or
reforming  a contract, however, a misrepresentation need  not  be
fraudulent;  it need only be material.49  As we said  in  McLees,
Restatement  (Second)  of Contracts  164  (1981)  states  that  a
contract  is  voidable [i]f a partys manifestation of  assent  is
induced by either a fraudulent or a material misrepresentation by
the other party upon which the recipient is justified in relying. 50
The  standard  the  board  used to  evaluate  Seyberts  claim  of
misrepresentation therefore differed in one significant way  from
that  discussed in McLees: the board only looked to see if  there
was    an   intentional   misrepresentation,   not   a   material
misrepresentation.51  In order to avoid a  contract  based  on  a
misrepresentation, the party seeking to avoid the  contract  must
show  (1)  a  misrepresentation;  (2)  which  was  fraudulent  or
material; (3) which induced the party to enter the contract;  (4)
upon which the party was justified in relying.52
          Although  we  agree that substantial evidence  supports
the    boards    finding   that   there   was   no    intentional
misrepresentation,  it was error to consider only  whether  there
was  a  fraudulent misrepresentation, and we cannot say that  the
error  was  harmless.   There are at  least  two  ways  in  which
Rudolphs  December  2,  1994 letter could  have  been  materially
          misleading.
          First,  Rudolph  stated, At this point in  your  claim,
there   are  three  remaining  benefits  available.    She   then
identified  three  areas  of  benefits:  reemployment   benefits,
permanent  partial  impairment benefits,  and  medical  benefits.
From  this  statement Seybert could infer that he was potentially
eligible for only these three benefits and no others, i.e.,  that
no others were remaining.53  Rudolph did not tell Seybert that the
disability  benefits  available to him, and  which  he  would  be
waiving, could include PTD benefits, even though she knew  as  of
September 26, 1994, that Seybert had been found eligible for SSDI
benefits.54  Counsel for Alaska National conceded at oral argument
before  us  that Seyberts receipt of SSDI benefits could  support
the  notion  that  Seybert  might  have  been  eligible  for  PTD
benefits.   Seybert  argues  that  Rudolphs  failure  to  mention
subsection .041(k) benefits as part of the available reemployment
benefits  was also a material misrepresentation.  The  settlement
waived entitlement to subsection .041(k) benefits; those benefits
were  not discussed with Seybert before settlement.  Rudolph  had
calculated six weeks before she wrote Seybert that those benefits
were worth approximately $25,000 for one year.55  The board could
therefore  reasonably  find  that Rudolphs  statement  about  the
benefits  remaining in Seyberts claim was not in accord with  the
facts she knew of his case.56
          Second,  Rudolphs  statement in the  letter  concerning
Seyberts  right  to  change physicians is potentially  materially
misleading.   Her  December  2,  1994  letter  acknowledged  that
Seybert  was  entitled to further medical care as the  result  of
[his]  injury.   It then stated, Because of your recent  move  to
Oregon,  and as a term of our settlement proposal, we will  agree
to  allow you to select a new physician in your local area and we
will  then  be responsible for further medical care in accordance
with  the Alaska Workers Compensation statutes.  But this  letter
is  unclear  as  to  whether  Alaska National  acknowledged  that
Seybert  had  a right to a new physician because of his  move  to
Oregon or Dr. Flemings refusal to treat him, both of which events
were independent of the settlement agreement.57  And the December
27  letter implied that Alaska Nationals willingness to allow him
to see a new physician depended on whether he settled his claims.
          Seyberts  arguments concerning the change of physicians
focus  on his contention that his treatment by Dr. Fleming was  a
referral within the meaning of AS 23.30.095(a).58  The board  did
not  discuss  in detail Seyberts contention that  the  change  in
physicians from Dr. Rich to Dr. Fleming was a referral  permitted
by  AS 23.30.095(a); it simply stated in its summary of the  case
that  Dr.  Rich  referred Seybert to Dr.  Fleming  for  a  second
opinion.   The board may also consider on remand whether  Seybert
came under Dr. Flemings care because of a referral.  Depending on
whether  there was a referral, Rudolphs statements  that  Seybert
had  used  his  statutorily permitted change in physicians  could
have  been materially misleading.  In addition, the board  should
consider  whether  Seybert had a right,  not  subject  to  Alaska
Nationals  permission,  to change physicians  when  the  C&R  was
negotiated by virtue of either his move to Oregon or Dr. Flemings
          refusal to treat him further.59
          Because  the  question  whether a misrepresentation  is
material is a mixed question of law and fact,60 we must remand so
the  board  can  determine  whether any  of  Rudolphs  or  Alaska
Nationals statements were material misrepresentations.   We  also
remand    for   consideration   of   the   other   elements    of
misrepresentation.61  On remand, the board must consider  whether
any  misrepresentation  was an inducing  cause   whether  Seybert
manifested his assent to the contract in reliance on them62   and
whether    Seybert   was   justified   in    relying    on    any
misrepresentation.  As to this latter issue, the board  may  need
to  consider  whether  the  representations  were  statements  of
opinion  and,  if they were, whether Seybert reasonably  believed
that  Rudolph had special skill or judgment with respect  to  the
subject matter.63
          Underlying the evaluation of Seyberts misrepresentation
and fraud claims is the issue of what duty a workers compensation
insurance  adjuster owes to an unrepresented claimant.   Although
we  decide  here that there is no fiduciary duty, the  board  may
consider  on  remand  what  duty the adjuster  does  owe.   Under
certain  circumstances non-disclosure of a fact can be equivalent
to  an  assertion, and according to the Restatement  (Second)  of
Contracts  161(b), failure to act in good faith and in accordance
with  reasonable  standards of fair dealing can  be  relevant  in
determining  when  non-disclosure of a fact is equivalent  to  an
assertion.64  Counsel for Alaska National stated at oral argument
on  appeal  that an insurance adjuster has the duty to be  honest
with an unrepresented workers compensation claimant, but insisted
that Rudolph did not need to put all [her] cards on the table  as
a negotiating strategy.  In workers compensation, where there are
complex rules that can carry significant consequences, it is hard
to  ignore  the  disparity in information and knowledge  that  an
experienced  insurance  adjuster may  possess  compared  with  an
unrepresented  claimant.   Because  knowledge  of  the   business
practices of workers compensation insurers is an area within  the
boards special expertise, the board should consider this question
on  remand.   The  issue of what the insurers duties  are  to  an
unrepresented claimant may also be relevant in assessing  whether
Seybert  was  justified  in  relying  on  any  misrepresentations
Rudolph made.65
          Seybert also argues that the board applied an incorrect
legal  standard to his claim of duress.  Alaska National counters
that  the standard the board used is consistent with Alaska  case
law  on duress.  The standard the board applied in Seyberts  case
was  hardship intentionally created by overreaching  or  improper
interference by the employer to coerce the employee to sign.   We
have  held  that a party alleging duress must show  that  (1)  he
involuntarily   accepted   the  terms   of   another;   (2)   the
circumstances   permitted   no   alternative;   and   (3)    such
circumstances were the result of the coercive acts of  the  other
party.66  There appear to be some differences in the elements that
must  be shown under the two standards:  the boards standard does
not  require  a  showing  that  the  circumstances  permitted  no
alternative,  and it appears to require tortious conduct  by  the
          employer.67  In contrast, we have held that the wrongful acts need
only be wrongful in the moral sense.68
          Seybert   argues  that  he  presented   evidence   that
satisfied  the  duress elements set out in  Totem  Marine  Tug  &
Barge,  Inc. v. Alyeska Pipeline Service Co.,69 but he  does  not
show  how  differences between the board and court standards  are
material to his case.  Absent a more detailed argument about  how
the standards differ and how the differences are important to his
facts,  and  absent  a meaningful discussion about  why,  in  the
context  of workers compensation claims, it was legal  error  for
the  board  to use a standard that differs from the one  we  have
discussed,  we  will  not  consider whether  the  board  used  an
incorrect legal standard in evaluating Seyberts claim of duress.
          Seyberts argument that the C&R should fail for lack  of
consideration has no merit.  Even if the dispute about the change
in  physicians  was  not  a bona fide dispute,  Seybert  received
consideration,  $30,000, for the release of his claims.   Failure
of  part of the consideration Seybert received does not void  the
entire  contract  for  lack  of  consideration.70   We  are  also
unpersuaded by Seyberts argument that the use of the term primary
physician   in   the  settlement  agreement  was  ambiguous   and
misleading.   In the settlement agreement Alaska National  stated
that   Dr.  Williamson-Kirland  was  the  primary  physician   in
connection  with Mr. Seyberts pain clinic.  This is  an  accurate
statement.  The agreement also said, [T]he employer contends that
the employee has had one (1) change of primary physician thus far
in  this claim. . . . [T]he employee will be allowed to make  one
(1) additional change of treating physician.  Although the use of
the  terms  primary  and  treating is inconsistent,  it  was  not
materially misleading.71
     E.   The Board Did Not Err in Failing To Order an SIME.
          Seybert  argues  that  he never  waived  his  right  to
request  an SIME under former AS 23.30.095(k) and that the  board
erred in not ordering an SIME in 2004.  Seybert requested an SIME
in  2004  based on his assertion that a dispute existed  in  1994
between  his  treating physician, Dr. Fleming, and the  employers
physician,  Dr.  Dapra.   The board refused  to  order  an  SIME,
finding that there was no medical dispute requiring one and  that
Seybert  had  waived any right he had to one when he  signed  the
C&R.
          We  affirm the boards refusal to order an SIME in 2004.
Although  there was a difference of opinion in 1993 between  Drs.
Fleming  and  Dapra about the need for a second  surgery,  Alaska
National agreed to pay for the medical treatment proposed by  Dr.
Fleming, Seyberts treating physician.  The purpose of an SIME  is
to  have  an independent expert provide an opinion to  the  board
about a contested issue.72  The board did not need its own expert
in 2004 to resolve a dispute between the opinions of Drs. Fleming
and  Dapra  because that dispute had been resolved in  1993  when
Alaska  National  paid for Seyberts second  surgery.   The  board
correctly denied Seyberts 2004 request for an SIME related to the
issues disputed in 1993.
     F.   Discovery Rulings
          Seybert subpoenaed Alaska Nationals file concerning his
          claim during pre-hearing discovery.  Alaska National failed to
produce the entire file; it claimed privilege with respect to any
correspondence  or  telephone notes between  its  staff  and  its
attorney.   It  also refused to produce the serious loss  reports
and reserve sheets prepared during the pendency of the claim;  it
asserted  that these documents were proprietary and not relevant.
Seybert  asked  the  board to compel discovery  of  the  withheld
documents.   The  board refused to do so;  it  decided  that  the
documents requested were either privileged or not material.  With
respect  to  the  correspondence and records of  telephone  calls
between  Alaska  National and its attorney,  the  superior  court
ruled  that  the board did not abuse its discretion  because  the
board  permissibly could have found that Seybert did not  make  a
sufficient  showing of fraud to justify overriding the  attorney-
client  privilege.  The superior court also held that even though
the  serious loss reports were not privileged, the board did  not
abuse  its  discretion  in  failing to order  production  of  the
documents because they were not material.
          We  agree  with the superior court and the  board  that
Seybert  did  not make a showing of fraud sufficient to  overcome
the  attorney-client privilege.  To override the  attorney-client
privilege, Seybert was required to make out a prima facie showing
that  Alaska National consulted with its attorney for the purpose
of  defrauding him.73  To make out a prima facie case, he had  to
present more than mere allegations.74  We hold that on these facts
Seybert  did  not  make out a prima facie  case  of  civil  fraud
entitling  him to discovery of privileged documents.   The  board
consequently did not abuse its discretion by refusing  to  compel
production of the documents.
          With  respect  to the reserve sheets and  serious  loss
reports, the board decided that they were not relevant.   Cominco
argues  here that the serious loss reports and reserve worksheets
are  work  product  and are not discoverable  or  that  they  are
unlikely  to  lead to the development or disclosure  of  relevant
evidence.   We  have  previously determined that  attorney-client
privilege  and work product doctrine do not protect the existence
and  amount  of  loss  reserves  from  discovery  when  they  are
relevant, absent some showing that the documents in question were
prepared at the direction of an attorney.75  Cominco did not make
a  showing  before  the  board that the documents  were  in  fact
prepared  at  the direction of counsel.  Because  we  remand  the
misrepresentation  claim  to  the  board  for  application  of  a
different  legal standard, the board may reexamine its ruling  to
decide  whether the reserve sheets or serious loss reports  might
reasonably lead to the discovery of admissible evidence.
IV.  ALASKA NATIONALS CROSS-APPEAL
          Alaska National cross-appeals the superior courts order
remanding  Seyberts  case to the board while the  superior  court
appeal  was pending so the board could decide Seyberts claims  on
the  issue  of a SIME as it relates to the settlement  agreement.
The  superior  court stayed the appeal during the remand  to  the
board.   Alaska National contends that remanding the  case  while
the appeal was pending violates principles of claim splitting  or
res  judicata  and that the superior court therefore  abused  its
          discretion in remanding the case.  Seybert counters that a remand
to the board was within the power of the superior court under the
appellate rules, as well as the Administrative Procedure Act, and
that even if the superior court erred by remanding, the error was
harmless.
          Alaska  Nationals  claim that res judicata  barred  the
superior  court from remanding Seyberts case to the  board  fails
because  all  of  the proceedings were part of the  same  action.
Although   res   judicata   applies   to   workers   compensation
proceedings,   the  doctrine  is  not  applied  as   rigidly   in
administrative  proceedings as it is in  judicial  proceedings.76
Res  judicata  applies to subsequent lawsuits to bar relitigation
of  issues  that  could have been raised in  a  prior  lawsuit.77
Because  the  remand in Seyberts case was in the  middle  of  the
appeal  of  the decision, it was not a subsequent  lawsuit.   The
cases  on which Alaska National relies deal with litigation  that
ended  in  a  final  judgment, followed by a  second  lawsuit  or
administrative action based on the same set of facts as the first
litigation.78  None of the cases deals with a request for  remand
to an administrative agency during the course of an appeal to the
superior court.
          Appellate   Rule   520(c)  gives  an  appellate   court
discretion to require such further proceedings to be had  as  may
be just under the circumstances.79  Alaska Statute 44.62.570 also
gives  the superior court the authority to supplement the  agency
record  on appeal or remand a case to an administrative agency.80
Here,  Seybert presented some evidence at his first hearing  that
no one had informed him of his right to request an SIME, although
he  did  not make an explicit legal argument related to the  SIME
issue at the first hearing.81  In remanding the case to the board,
the  superior  court  ensured  that both  parties  could  present
evidence  to  support their arguments and rebut the other  partys
arguments.   It  was  within the power of the superior  court  to
remand the case to the board for this purpose.
          Moreover, Alaska National does not explain how  it  was
harmed  by  the remand.82  The superior court did not  abuse  its
discretion  in  remanding  the case  to  the  board  for  further
proceedings while the appeal was pending.
V.   CONCLUSION
          Because  the  board  used  a  standard  that  was   too
restrictive to determine whether the C&R should be set  aside  on
Seyberts  misrepresentation theory, we REVERSE the  boards  order
denying  his  petition  and  REMAND  to  the  board  for  further
proceedings consistent with this opinion.  We AFFIRM the superior
courts  decision  to  remand the case to the  board  for  further
proceedings while the appeal was pending.
_______________________________
     1     In  this  opinion,  we  refer to  Cominco  and  Alaska
National Insurance Co. collectively as Alaska National.

     2     This  was  later reduced to twenty-six  percent  after
Alaska National questioned the doctors calculations.

     3     AS  23.30.041(k)  states  that  if  an  employees  PPI
benefits are exhausted before the end of a reemployment plan, the
employer  must provide compensation equal to seventy  percent  of
spendable weekly wages until completion of the plan.

     4     This  amount is the sum of the out-of-pocket  expenses
that  Howden estimated his reemployment plan would cost  and  the
remaining PPI due Seybert.

     5     The  standard of proof the board applies  for  setting
aside  a C&R is clear and convincing evidence.  Blanas v. Brower,
AWCB  Decision No. 97-0252, at 14 (Dec. 9, 1997) (citing Witt  v.
Watkins,  579 P.2d 1065, 1067-68 (Alaska 1978)).  But  the  board
here  determined that Seybert had not met even the lower standard
of the preponderance of the evidence.

     6     An  SIME is a board-ordered medical evaluation  by  an
independent  physician  selected from a list  maintained  by  the
board;  the purpose of an SIME is to assist the board when  there
are  differences of opinion between the parties  physicians.   AS
23.30.095(k); 8 Alaska Administrative Code (AAC) 45.090 (2004); 8
AAC  45.092 (2007); Syren v. Municipality of Anchorage,  2006  WL
1075088, at *2 (Alaska Workers Comp. Bd., April 20, 2006).

     7     The  superior  court  opinion does  not  identify  the
doctors to whom it refers.

     8     The 2004 SIME request was based on the differences  of
opinion between Drs. Fleming and Dapra.

     9     Dwight  v. Humana Hosp. Alaska, 876 P.2d 1114  (Alaska
1994).

     10     Dougan v. Aurora Elec. Inc., 50 P.3d 789, 793 (Alaska
2002).

     11     George Easley Co. v. Estate of Lindekugel,  117  P.3d
734, 740 (Alaska 2005) (citing Handley v. State, Dept of Revenue,
838 P.2d 1231, 1233 (Alaska 1992)).

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

     13     DeNuptiis v. Unocal Corp., 63 P.3d 272,  277  (Alaska
2003) (citing OCallaghan v. Rue, 996 P.2d 88, 94 (Alaska 2000)).

     14     DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000)
(citing  Grove  v. Alaska Constr. & Erectors, 948 P.2d  454,  456
(Alaska 1997)).

     15     Id.  (quoting Miller v. ITT Arctic Servs.,  577  P.2d
1044, 1046 (Alaska 1978)).

     16    Dougan, 50 P.3d at 793.

     17     See Sw. Marine, Inc. v. State, Dept of Transp. & Pub.
Facilities, 941 P.2d 166, 172 (Alaska 1997).

     18    Dougan, 50 P.3d at 793 (citing Morgan v. State, Dept of
Revenue, 813 P.2d 295, 297 n.4 (Alaska 1994)).

     19     Pierce v. Intl Ins. Co. of Ill., 671 A.2d 1361  (Del.
1996).

     20     Munn  v. Thornton, 956 P.2d 1213, 1220 (Alaska  1998)
(quoting Paskvan v. Mesich, 455 P.2d 229, 232 (Alaska 1969)).

     21    Id.

     22    O.K. Lumber Co. v. Providence Wash. Ins. Co., 759 P.2d
523, 525 (Alaska 1988).

     23    Munn, 956 P.2d at 1220.

     24    3 AAC 26.100 (2005).

     25    3 AAC 26.100(2) (2005).

     26    3 AAC 26.100(1) (2005).

     27     Munn, 956 P.2d at 1220 (quoting Wagner v. Key Bank of
Alaska, 846 P.2d 112, 116 (Alaska 1993)).

     28    O.K. Lumber, 759 P.2d at 525.

     29     Adamson  v. Univ. of Alaska, 819 P.2d  886,  889  n.3
(Alaska  1991) ([W]here a point is given only a cursory statement
in  the  argument  portion of a brief,  the  point  will  not  be
considered on appeal.).

     30    Pierce v. Intl Ins. Co. of Ill., 671 A.2d 1361, 1365-66
(Del.  1996).  We also note that the Delaware court distinguished
our  case  law  from  its  decision  in  Pierce  because  we  had
determined  that  in Alaska a workers compensation  claimant  who
alleges  bad  faith on the part of the insurer  has  a  cause  of
action  in tort rather than contract.  Pierce, 671 A.2d  at  1367
(citing  Stafford  v.  Westchester Fire Ins.  Co.,  526  P.2d  37
(Alaska  1974), overruled on other grounds by Cooper v.  Argonaut
Ins. Cos., 556 P.2d 525 (Alaska 1976)).

     31    AS 23.30.012(b).

     32     Seyberts receipt of SSDI could, as counsel for Alaska
National conceded at oral argument before us, support the  notion
that Seybert was permanently and totally disabled.

     33    The 2005 amendments to the Alaska Workers Compensation
Act require the board to review settlements when the claimant  is
not  represented by an attorney licensed in Alaska.  Ch. 10,  10,
FSSLA  2005.  We express no opinion about what this review should
entail.

     34     Dwight  v. Humana Hosp. Alaska, 876 P.2d  1114,  1119
(Alaska  1994)  (holding that board is required to  give  parties
notice  of  right  to request SIME in event of medical  dispute).
Here  there  was  no  medical dispute as  defined  in  former  AS
23.30.095(k).

     35    Former AS 23.30.095(k) (providing for SIME in event of
medical dispute regarding ability to enter reemployment plan).

     36    Id.

     37    The current statute provides, A lump-sum settlement may
be  approved  when it appears to be to the best interest  of  the
employee or beneficiary or beneficiaries.  AS 23.30.012(b).

     38     Dameron v. Neumann Bros., 339 N.W. 2d 160, 161  (Iowa
1983) (after employee was awarded weekly PTD benefits, he applied
to   have  them  commuted  to  lump-sum  award;  commutation  was
permitted as being in employees best interest); Codling v.  Aztec
Well Servicing Co., 549 P.2d 628, 632 (N.M. App. 1976) (reversing
lump-sum  commutation  of PPI award where  insufficient  evidence
supported  exceptional  circumstances  to  justify  commutation);
Bailey v. Colonial Freight Sys., Inc., 836 S.W.2d 554, 557 (Tenn.
1992) (trial court must consider whether commutation of award  is
in  employees  best  interests as well as  employees  ability  to
manage his money).

     39     8 Arthur Larson & Lex K. Larson, Workers Compensation
Law   132.07[1]  (2007).  AS 23.30.160 prohibits commutations  of
compensation  or  benefits  except as  provided  in  the  workers
compensation act.  PPI benefits can be paid as a lump sum in some
circumstances under AS 23.30.190(a), and AS 23.30.215(d)  permits
commutation of an award payable to an alien dependent.

     40      For  this  same  reason,  Seyberts  claim  that  the
settlement  was  presumptively unreasonable under  former  8  AAC
45.160(e)  has no merit.  8 AAC 45.160(e) provided that  lump-sum
settlements   of   board-ordered   PTD   claims   were   presumed
unreasonable.   There  was  never a board-ordered  PTD  claim  in
Seyberts case.

     41     Indus. Commercial Elec., Inc. v. McLees, 101 P.3d 593
(Alaska 2004).

     42    Williams v. Abood, 53 P.3d 134, 139 (Alaska 2002).

     43     See Walton v. Ramos Aasand & Co., 963 P.2d 1042, 1045
(Alaska  1998)  (holding  that basic contract-law  principles  of
contract formation apply to settlement agreements); Olsen Logging
Co. v. Lawson, 856 P.2d 1155, 1158-59 (Alaska 1993) (holding that
AS  23.30.012  prohibits setting aside workers  compensation  C&R
based on mistake).

     44    Witt v. Watkins, 579 P.2d 1065, 1067 (Alaska 1978).

     45    Olsen Logging Co., 856 P.2d at 1158-59.

     46     Blanas v. Brower Co., 938 P.2d 1056, 1061-62  (Alaska
1997).

     47    Smith v. Commonwealth Elec. Co., AWCB Decision No. 94-
0141 (June 16, 1994).

     48     See Thomson v. Wheeler Constr. Co., 385 P.2d 111, 113
(Alaska 1963) (noting that defrauded party to contract has option
of  seeking  damages based on fraudulent misrepresentation);  see
also  Joseph M. Perillo, 7 Corbin on Contracts  28.13,  at  71-72
(rev.  ed. 2002); compare Restatement (Second) of Contracts   164
(1981)  with Restatement (Second) of Torts  525, 526, 538 (1977).
The  elements  of  fraudulent misrepresentation include  a  false
representation  of fact, scienter, intention to induce  reliance,
justifiable  reliance,  and damages.   Barber  v.  Natl  Bank  of
Alaska,  815  P.2d  857,  862 (Alaska 1991)  (citing  Restatement
(Second) of Torts  525 (1976)).

     49     McLees, 101 P.3d at 598 (citing Cousineau v.  Walker,
613 P.2d 608, 612 (Alaska 1980)).

     50    Id.

     51     The  board  may also have required  Seybert  to  show
coercion  as  part  of his misrepresentation  and  fraud  claims,
because  its  finding  states, [W]e find  no  credible,  specific
evidence  of misrepresentation or fraud or duress by the employer
to  coerce  the  employee to sign the C&R.  Coercion  is  not  an
element of fraud or misrepresentation, only duress.  Barber,  815
P.2d  at  862; Helstrom v. N. Slope Borough, 797 P.2d 1192,  1197
(Alaska 1990) (setting out elements of duress).

     52     Bering Straits Native Corp. v. Birklid, 739 P.2d 767,
768  (Alaska 1987) (citing Johnson v. Curran, 633 P.2d  994,  997
(Alaska 1981)).

     53     See  Restatement (Second) of Contracts   159  cmt.  a
(1981)  (noting  that meaning of statement  depends  on  all  the
circumstances, including what may fairly be inferred from them).

     54     To  be  found eligible for social security disability
benefits,  a  claimant  must show that based  on  his  functional
limitations, age, education, and past work history, he is  unable
to engage in substantial gainful work that exists in the national
economy.  42 U.S.C.  423(d)(2)(A) (2004).

     55    A worker can receive subsection .041(k) benefits for up
to two years from the date of plan approval.  AS 23.30.041(k).

     56    See Restatement (Second) of Contracts  159 (1981).

     57     Rudolphs notes show that Dr. Flemings office felt  in
March 1994 that there was nothing her office could do for Seybert
because  his  problems were not neurosurgical.  Dr. Fleming  also
clearly  stated in her November 3, 1994 letter to Alaska National
that  she  would not prescribe medication for Seybert because  of
his  move to Oregon and that it was not in his interest  to  have
her  treat him because of the distance between his new  home  and
Reno.   The record does not explain why Alaska National paid  for
Seybert to visit Dr. Fleming in November 1994.

     58    AS 23.30.095(a) provides, in part:

               When  medical  care  is  required,   the
          injured  employee  may designate  a  licensed
          physician to provide all medical and  related
          benefits.   The  employee may not  make  more
          than  one  change in the employees choice  of
          attending   physician  without  the   written
          consent  of  the  employer.   Referral  to  a
          specialist   by   the   employees   attending
          physician  is  not  considered  a  change  in
          physicians.
          
     59     See  Bloom v. Tekton, Inc., 5 P.3d 235,  239  (Alaska
2000)  (noting  that  when  workers attending  physician  becomes
unwilling  or  unable  to  continue care,  concerns  over  doctor
shopping  cannot  override statutes primary purpose  of  allowing
injured  workers to choose their attending physicians); see  also
Clymer  v.  Wilton Adjustment Servs., AWCB Decision  No.  95-0068
(March 19, 1995); Williams v. Cal Worthington Ford, AWCB Decision
No. 93-0254 (Oct. 13, 1993).

     60    Diblik v. Marcy, 166 P.3d 23, 25 (Alaska 2007) (citing
Cousineau, 613 P.2d at 613).

     61     Seybert  also  argues that Alaska  Nationals  actions
constituted  constructive fraud, but the  issue  of  constructive
fraud  in  his case is encompassed in our ruling on the  material
misrepresentation issue.  See Adams v. Adams, 89  P.3d  743,  750
(Alaska     2004)     (comparing    constructive     fraud     to
misrepresentation).

     62    Restatement (Second) of Contracts  167 (1981).

     63    Id.  168-70.

     64     Id.   161(b); see also id.  161 cmt. d  (noting  that
party  is expected to act in accordance with reasonable standards
of fair dealing, as reflected in prevailing business ethics).

     65    Id.  169-70.

     66     Helstrom  v.  N. Slope Borough, 797 P.2d  1192,  1197
(Alaska  1990) (quoting Totem Marine Tug & Barge, Inc. v. Alyeska
Pipeline Serv. Co., 584 P.2d 15, 21 (Alaska 1978)).

     67     The  board  did not define overreaching  or  improper
interference  in  its  decision.  We note  that  overreaching  is
defined   as  taking  unfair  commercial  advantage  of  another,
especially by fraudulent means.  Blacks Law Dictionary 1136  (8th
ed.  2004).   Improper  interference,  discussed  in  a  somewhat
different  context   when  it  is claimed  that  there  has  been
improper  interference with a contract  is a  tort.   Restatement
(Second) of Torts  766-67 (1979).

     68    Totem Marine Tug & Barge, 584 P.2d at 22.

     69     Totem  Marine  Tug & Barge, Inc. v. Alyeska  Pipeline
Serv.  Co., 584 P.2d 15, 21 (Alaska 1978).  The elements are  the
same in Helstrom, 797 P.2d at 1197.

     70    Restatement (Second) of Contracts  80 (1981).

     71    Seybert argues separately that the C&R terms related to
medical care were unconscionable.  We do not need to decide  this
issue because of our decision on his misrepresentation claim.

     72     See Osborne Constr. Co. v. Jordan, 904 P.2d 386,  389
n.3  (Alaska 1995); Dwight v. Humana Hosp. Alaska, 876 P.2d 1114,
1119 (Alaska 1994).

     73     Munn  v. Bristol Bay Hous. Auth., 777 P.2d  188,  195
(Alaska 1989).

     74     United Servs. Auto. Assn v. Werley, 526 P.2d  28,  32
(Alaska 1974).

     75    Loyal Order of Moose, Lodge 1392 v. Intl Fid. Ins. Co.,
797 P.2d 622, 628 n.14 (Alaska 1990).

     76     Robertson  v.  Am. Mech., Inc., 54 P.3d  777,  779-80
(Alaska  2002)  (citing McKean v. Municipality of Anchorage,  783
P.2d 1169, 1171 (Alaska 1989)).

     77    See State, Commercial Fisheries Entry Commn v. Carlson,
65 P.3d 851, 874 (Alaska 2003).

     78    Robertson, 54 P.3d at 780 (workers second compensation
claim  barred by res judicata because both claims had  same  core
set  of  facts);  DeNardo v. State, 740  P.2d  453,  454-55,  457
(Alaska  1987)  (second  lawsuit  against  state  barred  by  res
judicata);  Calhoun v. Greening, 636 P.2d 69,  72  (Alaska  1981)
(res  judicata barred second motion for relief from judgment when
first  motion for relief from judgment was denied and  no  appeal
was taken).

     79    Alaska R. App. P. 520(c).

     80    AS 44.62.570(d).

     81     He  argued that he did not fully know what his rights
were when he signed the C&R.

     82     See Municipality of Anchorage v. Devon, 124 P.3d 424,
432  (Alaska 2005) (citing Dobos v. Ingersoll, 9 P.3d 1020,  1024
(Alaska  2000)  (noting that party alleging error has  burden  of
showing prejudice)).

This site is possible because of the following site sponsors. Please support them with your business.
www.gottsteinLaw.com
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC