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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Barrington v. Alaska Communications Systems Group, Inc. (10/24/2008) sp-6321

Barrington v. Alaska Communications Systems Group, Inc. (10/24/2008) sp-6321

     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

DR. EDWARD BARRINGTON, D.C., )
) Supreme Court No. S- 12609
Appellant,)
) Alaska Workers Compensation
v. ) Appeals Commission No. 06- 015
)
ALASKA COMMUNICATIONS ) O P I N I O N
SYSTEMS GROUP, INC.; LIBERTY)
MUTUAL INSURANCE CO.; and ) No. 6321 October 24, 2008
ALASKA WORKERS )
COMPENSATION APPEALS)
COMMISSION, )
)
Appellees.)
)

          Appeal  from  the Alaska Workers Compensation
          Appeals Commission, Kristin Knudsen, Chair.

          Appearances: William J. Soule, Law Office  of
          William  J.  Soule, Anchorage, for Appellant.
          Jeffrey  D.  Holloway  and  Rebecca  Holdiman
          Miller,   Holmes  Weddle  &  Barcott,   P.C.,
          Anchorage,      for     Appellees      Alaska
          Communications   Systems  Group,   Inc.   and
          Liberty Mutual Insurance Company.  Krista  S.
          Stearns,    Assistant    Attorney    General,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General,    Juneau,   for   Alaska    Workers
          Compensation Appeals Commission.

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

          EASTAUGH, Justice.
I.   INTRODUCTION
          Dr. Edward Barrington performed medical services for  a
workers  compensation claimant who later settled her  claim  with
her  employer, without notice to her unpaid healthcare providers,
including  Dr. Barrington.  After the Alaska Workers Compensation
Board  approved the settlement without notice to Dr.  Barrington,
he  filed  his own claim against the employer for payment.   Both
the  board and the Alaska Workers Compensation Appeals Commission
held  that the employees settlement barred Dr. Barringtons claim.
Because  Dr.  Barrington should have been  given  notice  of  the
pending  settlement, we reverse the decisions of  the  board  and
appeals commission and remand for further proceedings.
II.  FACTS AND PROCEEDINGS
          Noelle  Williams  filed  a workers  compensation  claim
against  her employer, Alaska Communications Systems Group,  Inc.
(ACS),  after  she experienced job-related pain.   ACS  initially
paid  her  medical  bills  but later controverted  the  need  for
further  chiropractic treatment after its medical experts  stated
that  any treatment Williams needed was not the result of a work-
related injury.  Her treating physician referred Williams to  Dr.
Edward  Barrington  for  a  permanent  partial  impairment  (PPI)
evaluation;   Dr.   Barrington  performed  the   evaluation   and
electrodiagnostic testing in November 2004.  ACS controverted all
benefits   in  February  2005.   When  Dr.  Barrington  inquired,
Williamss workers compensation attorney told Dr. Barrington  that
his  claim  was  going  to  be  included  with  Williamss  claim.
According to Dr. Barrington, he delayed filing his own claim  for
payment based on this assurance.  Williamss attorney indeed filed
a copy of Dr. Barringtons bill with the board in March 2005.
          In  April 2005 Williams and ACS entered into a  written
settlement agreement, subject to board approval.  Per  the  terms
of  the  proposed  settlement, Williams would  accept  $7,500  as
payment for her workers compensation claims, including any unpaid
medical  expenses; she would waive future medical  benefits;  and
she  would  indemnify ACS for any payments it later made  on  her
claim.   The  agreement  did not disclose  the  total  amount  of
Williamss  outstanding medical bills and stated that the  parties
anticipated  that the settlement amount was more than  sufficient
to  cover the costs of any future medical treatment that  may  be
necessary.    No  one  gave  the  unpaid  healthcare   providers,
including  Dr. Barrington, any notice of the proposed  settlement
or  tried  to  join  them  as parties.  The  board  approved  the
settlement agreement in May 2005 without a hearing.
          Not  long  after  the  board approved  the  settlement,
Williams  filed  for  bankruptcy; she listed Dr.  Barrington  and
other  healthcare  providers as creditors.  The bankruptcy  court
discharged Williamss debt to Dr. Barrington and entered  a  final
decree in September 2005.
          Dr.  Barrington  filed  a  workers  compensation  claim
against  ACS  in  early July 2005, seeking payment  for  his  PPI
evaluation.1   ACS  opposed,  relying  on  its  settlement   with
Williams.   After  a  hearing, the board denied  Dr.  Barringtons
claim, ruling that his recourse was against Williams in the civil
courts.   Dr.  Barrington asked the board to reconsider,  arguing
          that he should have been joined as a party before the settlement
was approved.  The board confirmed its earlier decision.
          Dr.  Barrington  appealed  to the  appeals  commission,
which  affirmed.  The appeals commission agreed  with  the  board
that  Dr. Barrington had a civil cause of action against Williams
and   decided  that  Dr.  Barringtons  due  process  rights  were
protected by the survival of his common law action for collection
of  a  debt if his claim is extinguished in a settlement to which
he  is  not a party.  It determined that Dr. Barrington  did  not
need  to  be  joined  as  a real party in  interest  because  his
economic  interest was represented in the employees  claim.   The
appeals   commission  further  held  that  ACSs   liability   was
extinguished  by  the settlement and that Dr. Barrington  had  no
independent right to relief.  Reasoning that no statute  required
notice to him, it rejected his contention that he should have  at
least received notice of the proposed settlement.
          Dr. Barrington appeals.
III. DISCUSSION
     A.   Standard of Review
          When  we review an administrative agency decision  that
has been appealed first to the superior court, we directly review
the  agency  decision.2  Here, the first level of review  of  the
board  decision  was performed by an administrative  agency,  the
Alaska Workers Compensation Appeals Commission.3
          Dr.  Barrington  asks us to review the boards  decision
directly,   or  at  least  give  no  deference  to  the   appeals
commissions decision.  ACS and the appeals commission both  argue
that we should review the appeals commissions decision.
          The  parties  also disagree about the type of  question
this  appeal presents.  According to ACS, the appeals commissions
interpretation of the Alaska Workers Compensation Act  should  be
subject to reasonable basis review because the appeals commission
has  expertise  in  workers compensation law.   The  standard  of
review we apply is based on the type of question presented.4   We
have  frequently  applied the independent  judgment  standard  of
review in construing the Alaska Workers Compensation Act.5
          This  appeal presents issues of law that do not involve
agency  expertise.   The boards decision was  based  on  contract
principles.  The appeals commission ultimately based its decision
on  statutory  interpretation and  due  process.   We  apply  our
independent  judgment to the questions presented  here,  adopting
the  rule  of law that is most persuasive in light of  precedent,
reason, and policy.6
          Because  appeals commission decisions have precedential
value  for  the  board  and the appeals commission,  because  the
appeals  commissions decision represents the final administrative
action in a workers compensation case,7 and because the questions
presented  raise questions of law not involving agency expertise,
here we review the appeals commissions decision.
          We  decline  to adopt here a general rule  for  appeals
from  the appeals commission about the standards we will  use  to
review  other types of rulings that may be presented  in  workers
compensation  appeals, such as factual determinations,  decisions
committed  to adjudicator discretion, or rulings on questions  of
          law that involve agency expertise.8  We also express no opinion
about whether we will review the appeals commissions decision  or
the boards decision in other circumstances.9
     B.   The  Appeals Commission Is Not a Party to Appeals  from
          Its Decisions to this Court.
          
          The   appeals  commission  appeared  in  this   appeal,
asserting  that  it is a party before this court.   It  filed  an
appellees  brief,  as  did  ACS and its insurer,  Liberty  Mutual
Insurance  Company.   At  oral argument before  us,  the  appeals
commission  relied  on  court  rules  governing  appeals  to  the
superior court to support its contention that it is a party.
          We  hold that the appeals commission is not a party  to
appeals  from  its decisions to this court.  In  appeals  to  the
superior court, administrative agencies are parties to the appeal
under  court  rules.10  If one party appeals the superior  courts
decision in an administrative appeal to this court, all the other
parties  to  the superior court appeal are treated  as  appellees
here.11  Appeals from the appeals commission are heard directly by
this  court, bypassing the superior court.12  No statute or court
rule authorizes the appeals commission to be a party to an appeal
from its decisions to this court.
          The  Alaska Workers Compensation Act provides that  the
director of the Division of Workers Compensation may be  a  party
to  an  appeal to this court.13  The act permits the director  to
intervene  in appeals commission proceedings and to file  appeals
if  a board order concerns unsettled legal issues and a party  in
interest  is unrepresented.14  The appeals commission must  serve
the  director  with its decisions.15  The director  may  ask  the
appeals commission to reconsider a decision, even if the director
was  not previously a party.16  These provisions suggest that the
legislature  intended  the director or the  Division  of  Workers
Compensation itself, when it is a party to the appeals commission
proceeding, to represent the executive branch in appeals to  this
court  when necessary.17  The legislature, however, said  nothing
authorizing  the appeals commission to be a party  on  appeal  to
this   court,  or  implying  that  the  appeals  commission   may
participate  as a party in appeals taken from its own  decisions.
Moreover, the appeals commission, as an adjudicatory body, has no
more  inherent  interest or stake in defending  its  orders  than
would  a  superior  court  in an appeal  from  a  superior  court
judgment.18  We therefore hold that the appeals commission is not
a party to appeals from its decisions to this court.
     C.   Dr.  Barrington Should Have Been Joined as a  Party  or
          Should Have Received Notice of the Proposed Settlement.
          
          Dr. Barrington argues that due process required that he
be  joined  as  a  party  or  be given notice  of  the  impending
settlement before the board approved it.  He contends that he had
a  right to bring an independent claim and, because Williams  had
no  authority to act on his behalf, that the settlement could not
extinguish  his  claim.  ACS responds that Dr.  Barrington  could
have  joined  himself before the settlement,  but  did  not.   It
contends  that Williams could accept payment for Dr.  Barringtons
          bill and could, without notice to him, waive Dr. Barringtons
ability  to  be  paid  directly by ACS.  The  appeals  commission
agreed  with  ACS that Williams could completely  discharge  ACSs
liability  without  notice  to Dr.  Barrington.   Construing  the
Alaska  Workers Compensation Act as permitting Dr. Barrington  to
sue  Williams in court for payment for the treatment he provided,
the  appeals commission reasoned that Dr. Barringtons due process
rights were not violated.  We conclude that the board should have
joined  Dr.  Barrington as a party to Williamss claim  before  it
approved   the  settlement.   Because  the  proposed   settlement
potentially foreclosed Dr. Barringtons ability to recover payment
for  his  services, due process required notice to or joinder  of
Dr. Barrington before approval.
          1.   The boards joinder regulation
          Dr.  Barrington argued before the board that he  should
have  been joined as a party to Williamss case because he  had  a
right  to  relief  arising  out of Williamss  claim.   The  board
rejected  his argument without analysis.  The appeals  commission
looked at whether Dr. Barrington had to be joined as a party  and
decided   that  AS  23.30.030(4),  which  authorizes   healthcare
providers  to  file  claims in their  own  names,  and  8  Alaska
Administrative Code (AAC) 45.040, the boards joinder  regulation,
did  not compel the employee to join every creditor who may  have
provided  services  or  treatment  of  the  workers  compensation
injury.19  In essence, the appeals commission determined that Dr.
Barrington and Williams had identical interests and that Williams
could  therefore  represent Dr. Barringtons interests  adequately
before the board.
          We   agree   with  the  appeals  commission   that   AS
23.30.030(4)  and  8 AAC 45.040 do not require joinder  of  every
healthcare  provider in every case.  But we  conclude  that  they
required joinder of Dr. Barrington because he potentially  had  a
right to relief, Williams could not adequately advocate for  him,
and his absence affected his ability to protect his interest.
          Dr.  Barringtons assertion that he had a right to bring
an   independent   claim  is  rooted  in  the  language   of   AS
23.30.030(4),  which  states in part that a workers  compensation
insurer  will  promptly pay to the person entitled  to  them  the
benefits   conferred  by  this  chapter  and   that   a   workers
compensation insurance policy is a direct promise by the  insurer
to  the  person  entitled  to  physicians  fees  .  .  .  and  is
enforceable  in  the name of that person.20  We have  interpreted
this  subsection to mean that an employer is directly  liable  to
health-care  providers for treatment of work-related  injuries.21
Dr.  Barrington reasons that because he provided medical services
to Williams for a work-related injury, ACS had a direct liability
to  him  that the board could not extinguish without  giving  him
notice  or  an  opportunity to be heard.   ACS  denies  that  Dr.
Barrington  had an independent claim against it and  denies  that
his services were work related.
          The  board  decided  that  Williams  had  contractually
waived payment for Dr. Barringtons services in the settlement and
that  Dr. Barringtons recourse was within the civil courts.   The
appeals  commission  construed subsection .030(4)  as  permitting
          healthcare providers to file claims in their own names, but
determined  that the real party in interest is the employee,  not
the provider.  It decided that Dr. Barrington was not a party  in
interest before he filed his claim.
          There can be more than one real party in interest in  a
given  lawsuit or claim.22  Whether a person is a real  party  in
interest  under the Alaska Civil Rules depends on whether  he  or
she  has a substantive right to bring a claim.23  No one disputes
that Dr. Barrington could have filed a workers compensation claim
in  his own name before the settlement and joined Williams  as  a
party  to  his  claim.   Had he done so,  Dr.  Barringtons  claim
presumably  would have been joined with Williamss, he would  have
been  a  party, and he would have had to consent to a  settlement
that  affected his interest.24  From this, we conclude  that  Dr.
Barrington  had  a  potential right to  relief  that  arose  from
Williamss claim.
          By regulation, in board proceedings a person other than
the  injured worker shall join the employee as a party.25  Unlike
the  Alaska  Civil  Rules,  board regulations  do  not  otherwise
clearly  distinguish between permissive and compulsory joinder.26
8  AAC  45.040(c) states that a person who may have  a  right  to
relief in respect to or arising out of the same transaction . . .
should  be joined.  This subsection seems to give the board  some
discretion in deciding whether to allow or require joinder.   But
the  boards  discretion  is  not  absolute;  in  this  case,  Dr.
Barrington was a necessary party whose absence, as we  will  see,
violated due process.27
          Dr.  Barrington could have become a party to  Williamss
claim before settlement either by filing a claim in his own  name
and  joining  his  claim to Williamss, or by being  joined.28   A
physician  or  other non-party may not intervene in  an  existing
board  case; instead, 8 AAC 45.040(f) states that proceedings  to
join  a  person are begun either by a party filing a petition  to
join  the  person or by the board serving a notice  to  join  the
person.29  ACS is incorrect in implying that Dr. Barrington could
be  joined  only if he took affirmative steps to be joined  as  a
party.  ACS could have joined Dr. Barrington as a party, but  did
not.
          The  regulation lists factors the board is to  consider
in  deciding  whether  to join someone.30  For  purposes  of  Dr.
Barringtons   case,  two  of  the  factors  are   of   particular
importance:  whether  the  persons  presence  is  necessary   for
complete  relief and due process among the parties;  and  whether
the persons absence may affect the persons ability to protect  an
interest,  or subject a party to a substantial risk of  incurring
inconsistent  obligations.31   These  factors  are  substantially
similar  to  those  in Alaska Civil Rule 19(a),  which  addresses
compulsory joinder.32
          The  decision whether joinder is necessary in  a  civil
suit  is  a practical one.33  Our analysis in this case turns  on
practical  considerations  as well.  In  a  workers  compensation
case, there is often a unity of interest between the employee and
her  physicians.   The employee wants benefits, including  future
medical  benefits, and will present providers past bills  to  the
          board so it can order payment.  Here, Dr. Barrington testified
that  Williamss attorney assured Dr. Barrington that the attorney
would present Dr. Barringtons bill to the board for payment,  and
the attorney indeed filed a copy of the bill with the board.   In
most cases, joinder of all physicians who have provided treatment
would  be a spectactularly wasteful expenditure of resources  and
effort.34  But in some cases the interests of the employee and the
healthcare  provider  differ sufficiently that  the  employee  is
adverse to a medical provider or cannot adequately represent  the
providers interest.35
          The  interests  of  the  healthcare  provider  and  the
claimant  diverged in this case.  No one disputes  that  Williams
and  ACS  agreed to settle the case for an amount they  knew  was
inadequate to pay all of Williamss outstanding medical bills.  No
one   gave  the  healthcare  providers  notice  of  the   pending
settlement or tried to join them so they could introduce evidence
that  their services were reasonable and necessary and  therefore
payable  by the employer.36  The board did not try to  join  them
either, but it is unclear whether the board was aware of the lack
of unity of interests between Williams and her providers.
          ACS  asserts  that  the board knew  that  Williams  was
settling  for  an amount that would not cover her bills,  but  we
cannot  determine  the  accuracy  of  this  assertion  from   the
appellate record.  The boards awareness of any difference between
the amount of the settlement and the total of the unpaid provider
bills  is  relevant to whether Williams was able to  protect  Dr.
Barringtons interest and whether the settlement was in  Williamss
best interest.37
          The board held no hearing and made no specific findings
why  the  settlement was in Williamss best interest.  Settlements
that  waive  medical benefits are presumed not  [to  be]  in  the
employees  best  interest,  and will not  be  approved  absent  a
showing by a preponderance of the evidence that the waiver is  in
the  employees best interest.38  This settlement agreement waived
medical benefits, so it was presumed not to be in Williamss  best
interest.  ACS asserts that the board was aware that Williams had
outstanding  medical bills exceeding the settlement  amount,  but
the  language  of  the  settlement is ambiguous.   The  agreement
states  or  implies that all providers will be paid.   Thus,  the
agreement  first  states, Except as otherwise  provided  in  this
Agreement,  the  parties agree that the  employer  has  paid  all
compensation and medical benefits which are due as  of  the  date
the  employee  signs this Settlement Agreement.  It  also  states
that  the  settlement amount reflects payment  of  disputed  past
medical  expenses as well as a waiver of future medical expenses.
It  then provides that the parties anticipate that the settlement
monies  are more than sufficient to cover the costs of any future
medical  treatment  that may be necessary.  The  agreement  never
specifies  the  amount of Williamss unpaid bills  or  which  past
medical expenses were disputed.39  The board could reasonably have
concluded  from the quoted language that ACS was paying  Williams
enough  money to cover all of her past medical bills in  addition
to some future medical treatments.  Given these provisions in the
agreement,  the board may not have been aware that Williamss  and
          Dr. Barringtons interests diverged; the agreements quoted
representations  may  have influenced the  boards  assessment  of
Williamss best interest as well.
          Dr.  Barringtons  absence  from  the  board  proceeding
affected  his  ability  to  protect his  interest.   The  appeals
commission  determined that Dr. Barringtons common law  cause  of
action against Williams survived the settlement, but text of  the
pertinent  statute  does  not seem to  support  this  conclusion.
Alaska  Statute  23.30.097(f) states,  An  employee  may  not  be
required to pay a fee or charge for medical treatment or  service
provided  under this chapter.40  The appeals commission construed
subsection  .097(f)  as  applying  while  the  treatment  is  not
controverted (or a controverted claim has not been decided by the
board).  The parties appear to agree that if the board determines
that  a  claim  is  compensable, subsection .097(f)  prohibits  a
healthcare  provider  from bringing a  civil  action  against  an
injured worker for covered services.  The parties agree that,  if
the  board  determined  that  an injury  was  not  work  related,
subsection  .097(f) would not apply because medical  services  or
treatment  would  not  have  been  provided  under  the   workers
compensation  act.   But no board decision establishes  that  Dr.
Barringtons  services  were not work  related.   Absent  a  board
determination that the injuries were not work related, subsection
.097(f)  could  well  foreclose Dr. Barringtons  ability  to  sue
Williams for payment.
          The  appeals  commission did not  determine  whether  a
settlement decides a controverted claim and, if it does,  how  it
resolves   the  claim.   Language  in  the  commissions  decision
suggests  that  a  settlement dismisses  a  workers  compensation
claim.   Although an approved settlement discharges an  employers
liability,  it is enforceable as a board order or award,  so  the
settlement does not dismiss a claim.41  Approval of the settlement
here  could be construed as deciding that Williams had a  covered
injury,  for  there  was  no other reason  for  ACS  to  pay  her
benefits. If so, Williamss pre-settlement medical care would have
been,  in  the words of subsection .097(f), provided  under  this
chapter,  and  Dr. Barrington could not sue her  for  his  unpaid
services.42
          Apart  from the statutory bar, the settlement may  also
prevent  Dr. Barrington from establishing that his services  were
reasonable  and  necessary.  An employer is only responsible  for
paying  for an injured employees reasonable and necessary medical
expenses.43  Williams had many unpaid medical bills at the time of
the   settlement;   information  Williams  later   provided   the
bankruptcy  court suggests that the unpaid total was about  twice
the amount of the workers compensation settlement.  According  to
ACS, the parties intended Williams to use the settlement money to
pay  these  bills.  Some of Williamss medical expenses  were  for
chiropractic  care that exceeded the boards frequency  standards;
the  excess  treatments  were presumptively  not  reasonable  and
necessary.44  The board, in approving the settlement,  in  effect
let   Williams  decide  which  treatments  were  reasonable   and
necessary.   By not giving Dr. Barrington notice of the  proposed
settlement  and  an opportunity to present his claim,  the  board
          denied him the opportunity to show that the medical care he
provided was reasonable and necessary and that other medical care
was not.
          Failure to join Dr. Barrington also made it harder  for
the board to provide complete relief to the parties and subjected
ACS to the risk of incurring inconsistent obligations.45  As this
appeal demonstrates, ACS was not afforded complete relief by  the
settlement.   The  boards  failure to join  Dr.  Barrington  also
exposed Williams and ACS to litigation regarding payment for  Dr.
Barringtons  services.  Depending on the outcome  of  litigation,
ACS was at risk of inconsistent obligations.
          The board has interpreted 8 AAC 45.040 as permitting it
to  join  persons  on  its  own.46  Because  the  settlement  was
ambiguous, the board erred in failing to join Dr. Barrington when
there  was  a  real risk that he would be unable to  protect  his
interest  and  that the existing parties might  not  be  afforded
complete relief.
          2.   Dr. Barringtons due process claim
          We   have  determined  that  due  process  applies   to
administrative  proceedings.47  We have  adopted  the  three-part
balancing  test  from  Mathews v. Eldridge to  determine  whether
administrative proceedings satisfy due process.48  This test takes
the following into account:
          [f]irst,  the private interest that  will  be
          affected by the official action; second,  the
          risk   of   erroneous  deprivation  of   such
          interest through the procedures used, and the
          [probable]  value, if any, of  additional  or
          substitute    procedural   safeguards;    and
          finally,  the Governments interest, including
          the  function  involved and  the  fiscal  and
          administrative burdens that the additional or
          substitute   procedural   requirement   would
          entail.[49]
          
          We  first  consider Dr. Barringtons private  interests.
He asserts two:  his interest in being paid for his services, and
his  procedural interest in having the board hear his claim.  The
appeals  commission  decided  that Dr.  Barrington  only  had  an
economic  interest  and  that this interest  was  represented  by
Williams.   Because  Dr. Barrington had an independent  right  to
file  a  claim  and Williams could not adequately  represent  his
interest,  we  conclude  that  Dr. Barrington  had  a  cognizable
property  interest in filing an independent claim and  that  this
interest was entitled to due process protection.50
          The  second  step  in  our  due  process  analysis   is
evaluating  the  risk  of  erroneous  deprivation  using  current
procedures   and  the  benefits  of  additional   process.    Dr.
Barrington  asserts that the risk of erroneous deprivation  using
the  boards procedures is one hundred percent; ACS counters  that
Dr.  Barrington had the opportunity to join his claim before  the
settlement  and slept on his rights.  We disagree with  ACS  that
Dr.  Barrington  delayed unduly in filing his claim.   Given  the
assurance he received from Williamss attorney, who then filed Dr.
          Barringtons bill with the board, Dr. Barrington initially
reasonably  relied  on  Williams to protect  his  interest.   The
record  does  not  reflect precisely when Dr.  Barrington  became
aware  of  the settlement, but he filed his own claim  about  two
months  after  the board approved the settlement and  within  six
weeks  after Williams filed for bankruptcy.  The record does  not
establish  that Dr. Barrington learned, in time to file  his  own
claim  and seek joinder before the board considered and  approved
the  settlement,  that the proposed settlement  would  not  fully
compensate him for his services.
          In  the abstract, board regulations appear adequate  to
protect  the  due  process interests of healthcare  providers  in
board proceedings.  But the manner in which the board applied the
regulations  here subjected Dr. Barrington to the  risk  that  he
would  be  unable  to obtain payment for his  services.   When  a
judgment  has the effect of destroying a persons rights,  failure
to  join a person to the action from which the judgment arose may
amount  to a violation of due process.51  Because AS 23.30.097(f)
could  foreclose Dr. Barringtons ability to sue Williams,  or  at
least  make  collection problematic even without the complication
of Williamss bankruptcy, due process required his joinder.
          The  final  step  in  our analysis is  determining  the
governments  interest.  The appeals commission expressed  concern
that  compulsory  joinder of healthcare  providers  would  impede
settlement  and  crowd workers compensation claims.   ACS  echoes
these  fears  and  argues that additional  process  would  unduly
burden employers and put past settlements at risk.  But the board
and  appeals  commission decisions in this case  give  healthcare
providers  an  incentive to file independent claims  early  in  a
workers  compensation case or risk having their right to  payment
compromised  without  prior notice.  The  significant  disruption
caused by even infrequent attempts to set aside settlements would
seem  to  counterbalance  any burden that  might  be  created  by
additional  process  and the possibility  of  joining  healthcare
providers.
          The  board may have an additional administrative burden
in joining medical providers in some claims.  The board will have
to  examine  settlements  to  be sure that  healthcare  providers
claims  are  not  foreclosed without  notice.   But  we  are  not
convinced  that the administrative burden on the  board  will  be
great:   board  regulations  already create  a  presumption  that
settlements waiving medical benefits are not in an employees best
interest, and the workers compensation act requires the board  to
review  settlements  that waive future  medical  benefits.52   In
addition,  board  regulations already permit  providers  to  file
their own claims.53  We do not hold that parties need to notify or
join  healthcare providers in all circumstances.   But  when,  as
here,  a  settlement  is intended to pay for or  compromise  past
medical  expenses  without  requiring  payment  directly  to  the
providers, the board must provide notice and an opportunity to be
heard  to  providers  whose claims will be  extinguished  by  the
settlement.   The board should either begin proceedings  to  join
providers  or  give them adequate advance notice of the  proposed
settlement  so  they  can file their own claims.   Because  board
          regulations permit the board to consider the objections of the
person  whose  joinder is sought, providers who do  not  want  to
become parties can object to joinder.54  If, as ACS suggests, most
healthcare providers are willing to forgo payment in such  cases,
they  can notify the board that they waive their right to payment
and  ask  the board not to join them.  But providers who wish  to
present their claims must be given the opportunity to do so.
IV.  CONCLUSION
          Because we are not able to determine whether the  board
was  aware  of the disparity between the amount of the settlement
and  the  unpaid provider bills and because the board proceedings
effectively  foreclosed  Dr. Barringtons  right  to  present  his
claim,  we  REVERSE the decisions of the board  and  the  appeals
commission and REMAND to the appeals commission with instructions
to  remand  to the board for further proceedings consistent  with
this opinion.
_______________________________
     1     Dr. Barrington later added a claim seeking payment for
his diagnostic testing.

     2    Brown v. Patriot Maint., Inc., 99 P.3d 544, 548 (Alaska
2004)  (citing  Handley  v. State, 838 P.2d  1231,  1233  (Alaska
1992)).

     3     See Alaska Pub. Interest Research Group v. State,  167
P.3d 27, 36 (Alaska 2007).

     4     See,  e.g., Konecky v. Camco Wireline, Inc., 920  P.2d
277, 280 (Alaska 1995); Underwater Constr., Inc. v. Shirley,  884
P.2d  150,  152-53 (Alaska 1994); see also Arnesen  v.  Anchorage
Refuse,  Inc.,  925  P.2d 661, 664 n.4, 666  n.12  (Alaska  1996)
(applying de novo review to interpretation of word job in  former
AS  23.30.041  and  reasonable basis  review  to  tax  dependency
determinations); Kirby v. Alaska Treatment Ctr.,  821  P.2d  127,
128, 129 n.5 (Alaska 1991) (applying reasonable basis standard to
question of eligibility for rehabilitation benefits and  de  novo
review  to  applicability  of presumption  of  compensability  to
vocational rehabilitation claims).

     5     See,  e.g., George Easley Co. v. Estate of Lindekugel,
117  P.3d 734, 740 (Alaska 2005); Meek v. Unocal Corp., 914  P.2d
1276,  1278  (Alaska 1996); Rydwell v. Anchorage Sch. Dist.,  864
P.2d 526, 528 (Alaska 1993).

     6    Alaska Pub. Interest Research Group, 167 P.3d at 34.

     7     AS  23.30.008(a); Alaska Pub. Interest Research Group,
167 P.3d at 41, 45.

     8     See  Ogden  v. State, 395 P.2d 371, 372 (Alaska  1964)
(declining  to  establish rule of law on  matter  not  in  actual
controversy in case).

     9     See  generally  Zeigler Coal Co. v.  Dir.,  Office  of
Workers  Comp.  Programs, U.S. Dept of Labor, 326 F.3d  894,  897
(7th  Cir.  2003);  Pa. Tidewater Dock Co.  v.  Dir.,  Office  of
Workers Comp. Programs, U.S. Dept of Labor, 202 F.3d 656, 660 (3d
Cir.  2000) (quoting Janusziewicz v. Sun Shipbuilding & Dry  Dock
Co., 677 F.2d 286, 290 (3d Cir. 1982)); Port of Portland v. Dir.,
Office  of Workers Comp. Programs, U.S. Dept of Labor,  932  F.2d
836, 838 (9th Cir. 1991).

     10     Alaska  R.  App. P. 602(h) (stating  that  agency  is
appellee in administrative appeal).

     11     Alaska R. App. P. 201 (defining trial court as either
district  or  superior court); Alaska R. App. P. 204(g)  (stating
that all parties in trial court are parties to appeal).

     12    AS 23.30.129(a) states:

          Notwithstanding   the   provisions   of    AS
          44.62.560, orders of the commission  may  not
          be    appealed   to   the   superior   court.
          Consistent   with   AS  22.05.010(b),   final
          decisions  of the commission may be  appealed
          to the supreme court, and other orders may be
          reviewed by the supreme court as provided  by
          the Alaska Rules of Appellate Procedure.
          
     13    AS 23.30.127(a), .129(a), .395(15).  Subsection .127(a)
provides:

          A party in interest may appeal a compensation
          order  issued by the board to the  commission
          within  30 days after the compensation  order
          is  filed with the office of the board  under
          AS  23.30.110.  The director may intervene in
          an  appeal.   If a party in interest  is  not
          represented  by counsel and the  compensation
          order concerns an unsettled question of  law,
          the  director may file an appeal to obtain  a
          ruling on the question by the commission.
          
     14    AS 23.30.127(a).

     15    AS 23.30.128(e) states:

          Within 90 days after written briefing on  the
          appeal is completed or oral argument is held,
          whichever  is  later,  the  commission  shall
          issue  a  decision in writing.  The  decision
          must  contain a concise statement of  reasons
          for the decision, including findings of fact,
          if  required, and conclusions  of  law.   The
          commission  shall serve each  party  and  the
          director   with  a  copy  of  the   decision.
          Appeals  may be expedited for good  cause  by
          the  commission.   Unless reconsideration  is
          ordered under (f) of this section, a decision
          under this subsection is the final commission
          decision.
          
     16    AS 23.30.128(f) states:

          A   party   or   the  director  may   request
          reconsideration  of a decision  issued  under
          (e)  of this section within 30 days after the
          date  of service shown in the certificate  of
          service  of  the decision.  The request  must
          state  specific  grounds for reconsideration.
          Reconsideration  may  be   granted   if,   in
          reaching  the  decision, the  commission  (1)
          overlooked, misapplied, or failed to consider
          a     statute,    regulation,    court     or
          administrative  decision, or legal  principle
          directly   controlling;  (2)  overlooked   or
          misconceived    a    material    fact;    (3)
          misconceived a material question in the case;
          or  (4)  applied law in the ruling  that  has
          subsequently  changed.   The  panel  of   the
          commission    hearing   the    request    for
          reconsideration  shall consist  of  the  same
          members   of   the  panel  that  issued   the
          decision.  The commission may issue an  order
          for  reconsideration of all or  part  of  the
          decision  upon  request of  a  party  or  the
          director.   Reconsideration is based  on  the
          record,   unless   the   commission    allows
          additional  argument.   The  power  to  order
          reconsideration  expires 60  days  after  the
          date  of service, as shown on the certificate
          of service, of a decision issued under (e) of
          this  section.   If the commission  does  not
          issue an order for reconsideration within the
          time allowed for ordering reconsideration,  a
          request  for  reconsideration  is  considered
          denied.   If reconsideration is ordered,  the
          commission shall issue a decision  within  30
          days  after  the  close  of  the  record   on
          reconsideration.  The commission shall  serve
          each  party  in the case with a copy  of  the
          decision  upon reconsideration.  The decision
          upon  reconsideration is the final commission
          decision.
          
     17     The  division can ask the board to issue a  stop-work
order or assess a penalty against an employer for failing to have
workers  compensation insurance or other required  security.   AS
23.30.080(d)(f).

     18     See  Ingalls  Shipbuilding, Inc. v. Dir.,  Office  of
Workers  Comp. Programs, Dept of Labor, 519 U.S. 248, 265  (1997)
(deciding  that  in  split-function system  under  Longshore  and
Harbor  Workers Compensation Act, office of workers  compensation
programs   rather   than  Benefits  Review   Board   was   proper
administrative agency to be named as respondent in  appeal  under
Federal Rules of Appellate Procedure).

     19    8 AAC 45.040 (2004) provides, in part:

               (a)  Except  for  a  deceased  employees
          dependent   or  a  rehabilitation  specialist
          appointed  by the administrator or chosen  by
          an  employee in accordance with AS 23.30.041,
          a  person  other than the employee  filing  a
          claim  shall join the injured employee  as  a
          party.
          
               (b)    Except   for   a   rehabilitation
          specialist appointed by the administrator  or
          chosen by the employee in accordance with  AS
          23.30.041,  a person who files a  claim  must
          first  prove  a  compensable  injury  to   be
          eligible for benefits, or the opposing  party
          must  stipulate to or admit facts from  which
          the  board  can find the employees injury  is
          compensable.
          
               (c)  Any person who may have a right  to
          relief  in respect to or arising out  of  the
          same  transaction or series  of  transactions
          should be joined as a party.
          
               . . . .
          
               (f)  Proceedings to join  a  person  are
          begun by
          
                    (1) a party filing with the board a
               petition to join the person and  serving
               a  copy  of  the petition, in accordance
               with  8 AAC 45.060, on the person to  be
               joined and the other parties; or
               
                    (2) the board or designee serving a
               notice  to join on all parties  and  the
               person to be joined.
               
               . . . .
          
               (k)  If claims are joined together,  the
          board  or  designee will notify  the  parties
          which  case number is the master case number.
          After claims have been joined together,
          
                    (1)   a   pleading  or  documentary
               evidence filed by a party must list  the
               master  case number first and  then  all
               the other case numbers;
               
                    (2)    a    compensation    report,
               controversion notice, or a notice  under
               AS  23.30.205(f) must list only the case
               number assigned to the particular injury
               with  the employer filing the report  or
               notice;
               
                    (3)  documentary evidence filed for
               one of the joined cases will be filed in
               the master case and the evidence will be
               considered as part of the record in each
               of the joined cases; and
               
                    (4)  the  original  of  the  boards
               decision and order will be filed in  the
               master  case  file, and a  copy  of  the
               decision and order will be filed in each
               of the joined case files.
               
               (l)  After  the board hears  the  joined
          cases and, if appropriate, the division  will
          separate  the case files and will notify  the
          parties.   If  the  joined  case  files   are
          separated, a pleading or documentary evidence
          filed  thereafter by a party must  list  only
          the  case  number assigned to the  particular
          injury  with the employer filing the pleading
          or documentary evidence.
          
     20    AS 23.30.030(4).  AS 23.30.395(26) defines medical and
related  benefits as including physicians fees,  .  .  .  as  may
reasonably be required which arise[] out of or [are] necessitated
by an injury.

     21    Sherrod v. Municipality of Anchorage, 803 P.2d 874, 875
(Alaska 1990).

     22     4  James  Wm.  Moore et al., Moores Federal  Practice
17.10[1]  (3d ed. 2007).  The board regulations do  not  use  the
term  real party in interest in discussing the status of parties.
8  AAC  45.040 (2004).  We use the term only because the  appeals
commission used the term.

     23     Burns  v. Anchorage Funeral Chapel, 495 P.2d  70,  72
(Alaska 1972).

     24     8  AAC 45.040(a), (k) (2004); 8 AAC 45.160(b)  (2004)
(requiring  that  all  settlement agreements  be  signed  by  all
parties to the action).

     25    8 AAC 45.040(a) (2004).

     26    8 AAC 45.040 (2004); Alaska R. Civ. P. 17, 19, 20.

     27      Alternatively,  the  board  could  have  given   Dr.
Barrington  notice  of  the  proposed  settlement,  allowed   him
adequate  time  to file his own claim, and joined  his  claim  to
Williamss   existing  claim.   See  8  AAC  45.040(k)(l)   (2004)
(providing for joinder of claims).

     28    8 AAC 45.040 (2004).  This regulation does not specify
how  to  join  claims or when joinder of claims is  permitted  or
required.  8 AAC 45.040(k) (2004).

     29    8 AAC 45.040(f) (2004).

     30    8 AAC 45.040(j) (2004).  The factors are:

               (1)   whether  a  timely  objection  [to
          joinder] was filed in accordance with (h)  of
          this section;
          
               (2)  whether  the  persons  presence  is
          necessary for complete relief and due process
          among the parties;
          
               (3)  whether  the  persons  absence  may
          affect  the  persons ability  to  protect  an
          interest, or subject a party to a substantial
          risk of incurring inconsistent obligations;
          
               (4)  whether  a claim was filed  against
          the person by the employee; and
          
               (5)   if  a  claim  was  not  filed   as
          described in (4) of this subsection,  whether
          a  defense  to  a  claim,  if  filed  by  the
          employee, would bar the claim.
          
     31    8 AAC 45.040(j)(2)(3) (2004).

     32      Compare  Alaska  R.  Civ.  P.  19(a),  with  8   AAC
45.040(j)(2)(3) (2004).

     33     See Moore, supra  note 22,  19.02[2][c] (noting  that
Federal Civil Rule 19 defines absentees who are needed for a just
adjudication in very practical terms).

     34     Univ. of Mass. Meml Med. Ctr., Inc. v. Christodoulou,
851 A.2d 636, 646 (N.J. 2004).

     35     See,  e.g., Nakasone v. Ichiban Japanese Rest.,  AWCB
Decision   No.  00-0039  (March  8,  2000)  (joining   healthcare
providers   to  determine  whether  employee  was   entitled   to
reimbursement for treatments); Hathaway v. State, Dept of  Corr.,
AWCB  Decision No. 98-0094 (April 16, 1998) (holding  that  board
had  jurisdiction  to  order  healthcare  provider  to  reimburse
employee for excess treatment under AS 23.30.095(c)).

     36     See Bockness v. Brown Jug, Inc., 980 P.2d 462, 466-67
(Alaska  1999)  (holding employer liable only for reasonable  and
necessary medical care).

     37     ACS  asserted in oral argument before us and  at  the
hearing  on  Dr. Barringtons claim that some of the  chiropractic
bills  in  Williamss  claim  were for services  provided  by  her
husband.  If this assertion is accurate, it could provide further
evidence that Williamss and Dr. Barringtons interests diverged.

     38    8 AAC 45.160(e) (2004).

     39    The board has refused to approve a settlement when the
parties  supplied insufficient details about an employees  unpaid
past  medical expenses.  See Lindekugel v. George W. Easley  Co.,
AWCB  Decision  No.  91-0033 (Feb.  6,  1991);  see  also  8  AAC
45.160(c)   (2004)  (requiring  detailed  statement  of   parties
claims).

     40     AS  23.30.097(f)  was  enacted  in  2005,  after  the
settlement  was  approved.  Ch. 10,  36, FSSLA 2005.   A  similar
provision,  former  AS  23.30.095(f),  was  in  effect  when  the
settlement  was  signed and approved.  We assume that  the  minor
difference  in language between the two statutes is  unimportant,
as no one has discussed it.

     41     AS 23.30.012(b); see Olsen Logging Co. v. Lawson, 856
P.2d 1155, 1158 (Alaska 1993).

     42     Because Williams waived future medical benefits,  any
medical care she received after the board approved the settlement
would  not  be provided under the workers compensation  act.   AS
23.30.097(f).   Dr. Barringtons claim concerns services  provided
before  the  parties  entered into the  proposed  settlement  and
before  the  board  approved it.  ACS paid  Williams  $7,500  for
medical   services,  including  Dr.  Barringtons  services,   she
received  before  the  settlement  agreement  was  signed.   This
payment  implicitly treated Dr. Barringtons services  as  covered
under subsection .097(f).

     43     Bockness  v.  Brown Jug, Inc., 980 P.2d  462,  466-67
(Alaska 1999).

     44    AS 23.30.095(c); 8 AAC 45.082 (2004).

     45     See  8 AAC 45.040(j) (2004).  Dr. Barrington  asserts
that ACS took the risk of incurring inconsistent obligations when
it failed to join him, but the board also has a responsibility to
assess whether a persons presence is necessary.

     46    Weatherby v. N. Air Cargo, Inc., AWCB Decision No. 00-
0241 at 6-7 (Nov. 22, 2000) (interpreting AS 23.30.135 and 8  AAC
45.040  as  giving  board authority to join parties  to  claims);
Wynne  v.  State, AWCB Decision No. 99-0219 at 5 (Nov.  1,  1999)
(finding  that board had affirmative duty to join former employer
even  if  employee  failed  to file  claim  against  it);  8  AAC
45.040(f) (2004).

     47    Brandal v. State, Commercial Fisheries Entry Commn, 128
P.3d  732, 738 (Alaska 2006) (citing State, Dept of Health & Soc.
Servs. v. Valley Hosp. Assn, 116 P.3d 580, 583 (Alaska 2005)).

     48    Valley Hosp. Assn., 116 P.3d at 583 (citing Mathews v.
Eldridge, 424 U.S. 319 (1976)).

     49     Jurgens  v.  City of North Pole, 153  P.3d  321,  331
(Alaska 2007) (citing Mathews, 424 U.S. at 335).

     50     See  Patrick v. Lynden Transp., Inc., 765 P.2d  1375,
1378  (Alaska  1988) (noting that unlitigated claim  is  property
interest subject to due process).

     51     7  Charles Alan Wright, Arthur R. Miller &  Mary  Kay
Kane, Federal Practice and Procedure  1602 (3d ed. 2001).

     52    AS 23.30.012(b); 8 AAC 45.160(e) (2004).

     53    8 AAC 45.040(a) (2004).

     54    8 AAC 45.040(f), (j) (2004).

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