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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. CSK Auto, Inc. (04/03/2009) sp-6351

Smith v. CSK Auto, Inc. (04/03/2009) sp-6351, 204 P3d 1001

     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

TERRY L. SMITH, )
) Supreme Court No. S- 12690
Appellant, )
) Alaska Workers Compensation
v. ) Appeals Commission No. 06-010
)
CSK AUTO, INC., ROYAL AND ) O P I N I O N
SUNALLIANCE, and WILTON )
ADJUSTMENT SERVICE, ) No. 6351 - April 3, 2009
)
Appellees. )
)
Appeal from the Alaska
          Workers   Compensation  Appeals   Commission,
          Kristin S. Knudsen, Chair.

          Appearances:    Terry  L.  Smith,   pro   se,
          Fairbanks.  Robert L. Griffin and  Krista  M.
          Schwarting,  Griffin & Smith, Anchorage,  for
          Appellees  CSK  Auto,  Inc.  and  Royal   and
          SunAlliance.

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

          FABE, Chief Justice.

I.   INTRODUCTION
          An  employee  who  injured his back at  work  signed  a
partial  compromise and release (C&R) of his workers compensation
claim,   waiving   reemployment  benefits  and  permanent   total
disability benefits in exchange for $10,000.  The Alaska  Workers
Compensation  Board approved the partial C&R.   About  two  years
later,  the employee petitioned to vacate the partial  C&R  on  a
number of grounds.  The Board and the Alaska Workers Compensation
Appeals  Commission rejected his arguments.  Because we determine
that  the  Board  failed to follow its own  regulations  when  it
approved  the  partial  C&R,  we reverse  the  decisions  of  the
Commission and the Board and remand for further proceedings.
II.  FACTS AND PROCEEDINGS
          While  working for CSK Auto in March 2001, Terry  Smith
hurt  his  back unloading cases of antifreeze from a  truck.   He
worked  the  rest of that shift but sought medical attention  the
next  day.   CSK Auto paid temporary total disability  (TTD)  and
medical   benefits  related  to  the  injury.1   Smith   received
treatment  from doctors in both the Fairbanks area and  Anchorage
and  began  to see Dr. Susan Klimow in May 2001.  After treatment
and  a  course  of  physical therapy, Dr. Klimow determined  that
Smith  was medically stable but could not return to the  work  he
was  doing  when he injured his back; she rated him as  having  a
five percent whole person permanent partial impairment (PPI) as a
result  of  the injury.  Dr. Klimow treated Smith until  December
2001,  when  he changed doctors to Dr. Roy Pierson.  Dr.  Pierson
later referred Smith to Dr. Susan Anderson.
          CSK   Auto   requested   a   reemployment   eligibility
evaluation for Smith after receiving Dr. Klimows assessment.  The
reemployment benefits administrator (RBA) determined  that  Smith
was not eligible for benefits because in November 2001 Dr. Klimow
had  approved job descriptions for three jobs in the local  labor
market  that  Smith had done in the previous ten  years.2   Smith
appealed the RBA decision to the Board in January 2002.
          Smith  continued to receive medical treatment  for  his
back  throughout 2002. In March 2002 Dr. Anderson recommended  an
Intradiscal   Electrothermal  Therapy  (IDET)   procedure.    The
adjuster  who  was  working on Smiths case  later  contacted  Dr.
Klimow  to  see if she agreed with Dr. Anderson that Smith  might
benefit  from  an IDET procedure.  When Dr. Klimow indicated  her
agreement  with Dr. Anderson, the adjuster reclassified  all  the
PPI  benefits Smith had received as TTD benefits and began to pay
Smith TTD benefits again.
          In   July   2002   Barbara  Williams,  a   non-attorney
representative, entered an appearance on Smiths behalf.  Williams
attended  a prehearing conference where the parties agreed  to  a
hearing   on   Smiths  claim;  the  hearing  was  scheduled   for
October 17, 2002.  In the month before the hearing, Williams  and
CSK  Auto  negotiated  a  partial  settlement  of  Smiths  claim.
According to the terms of the partial C&R, Smith received $10,000
as  payment  for  his reemployment benefits and  permanent  total
disability (PTD) benefits.  CSK Auto agreed to be responsible for
future  reasonable  and necessary medical  care  related  to  the
injury  as well as other future benefits, except for those  Smith
specifically  waived.   CSK Auto retained the  right  to  contest
future  medical benefits. Smith signed the partial C&R on October
10,  2002.   The  partial  C&R was filed with  the  Board,  which
approved it on October 17, 2002, after a brief hearing.  Williams
was present at the hearing, but Smith was not.
          Smith  underwent  the IDET procedure  about  two  weeks
after  the  partial  C&R  was approved.   He  had  scheduled  the
procedure with Dr. Anderson before signing the agreement, but the
adjuster  did not complete travel arrangements for the  procedure
          until after Smith had signed the partial C&R.
          In  July 2003, after Dr. Anderson determined that Smith
was  medically  stable,  CSK  Auto  required  him  to  attend  an
independent  medical evaluation (IME) for an  impairment  rating.
Dr.  Patrick  Radecki conducted the IME.  Dr.  Radecki  concluded
that  Smith  was  unintentionally magnifying his  symptoms.   Dr.
Radecki  believed that Smith had mild degenerative  disc  disease
unconnected  to  his work injury and recommended that  Smith  not
have  further  medical care related to the work  injury.  Shortly
after  Dr.  Radeckis evaluation, CSK Auto controverted continuing
medical  care. Smith responded by rescinding all of  his  medical
releases.   Smith  discharged Williams as his  representative  on
June  4,  2004, and in a petition dated December 31, 2004,  asked
the Board to set aside the partial C&R based on fraud, duress, or
misrepresentation.
          In  his petition Smith alleged that (1) he did not know
the  extent of his injuries when he signed the partial C&R, while
CSK  Autos  attorney and the insurance adjuster, Susan  Kosinski,
did  and  (2)  CSK  Auto was not paying Smiths medical  bills  as
promised.  Smith later added other reasons to rescind the partial
C&R.   Among the theories he advanced to set the agreement  aside
were  (1) collusion between Williams and the opposing party;  (2)
failure  to  file all medical records as required by  regulation;
(3)  misrepresentations to the Board about the  identity  of  his
treating  physician; (4) threats to refuse the IDET procedure  if
Smith  did not agree to the settlement; (5) delay in notification
that  the  IDET procedure had been approved as evidence that  CSK
Auto  was  using the procedure as leverage to make him  sign  the
agreement;  (6) the Boards failure to order an impartial  medical
examination;  and  (7)  a  violation of his  due  process  rights
because  he did not appear before the Board prior to approval  of
the partial C&R.
          The  Board  held  a hearing on Smiths petition  to  set
aside  the  partial C&R on February 16, 2006.  Smith  represented
himself.   Smith  and  his brother testified  on  Smiths  behalf.
Williams  and  Kosinski testified on behalf of CSK  Auto.   Smith
testified that he was not getting the benefit of his bargain with
CSK  Auto  because  he  was no longer getting  medical  benefits.
According  to Smith, the IDET procedure failed, and  he  now  had
other  spinal  problems that would cost over $200,000  to  treat.
Because  of CSK Autos controversion of his medical care,  he  was
unable  to get needed treatment.  Smith also testified  that  the
adjuster  sometimes  changed her mind or controverted  treatment.
Smith  alleged that Williams told him he would not have the  IDET
procedure  done unless he signed the partial C&R.   Smith  stated
that  he noticed when he signed the partial C&R that not  all  of
the  medical records had been submitted to the Board, but he said
he  did  not  object  because he would  not  have  had  the  IDET
procedure unless he signed the agreement.  Smith admitted that he
had  scheduled  the IDET procedure with his physician  before  he
signed  the  partial C&R, but he said that he did  not  know  the
procedure had been preauthorized.
          Williams testified that she discussed CSK Autos initial
settlement  offer  of $7,500 with Smith and that  she  and  Smith
discussed  making  a counteroffer, ending up  with  a  figure  of
$10,000.   She stated that she also discussed CSK Autos  response
to  the  counteroffer with Smith.  Williams  indicated  she  told
Smith that she was unwilling to represent him at a hearing on the
reemployment benefits appeal and advised him that he  had  little
chance of prevailing in the appeal; she said that she only became
involved  in  Smiths  case to try to help  him  settle  it.   She
testified  that she discussed the waiver of PTD and  reemployment
benefits with Smith and that he voiced no concerns about  missing
medical records.  Williams also testified that she believed Smith
was  aware  before  he  signed the  partial  C&R  that  the  IDET
procedure had been approved.
          Kosinski testified that Smith was receiving medical and
TTD  benefits during negotiations and that she never  told  Smith
that the IDET procedure was contingent on his signing the partial
C&R.  She also testified that she approved the IDET procedure the
day  after  Smiths physician requested it but did not tell  Smith
that  it  was  approved because normally she left it  up  to  the
doctor  to  contact the patient and schedule the procedure.   She
said that when a workers compensation claimant is represented, it
is  not  her practice to communicate directly with the  claimant.
She  indicated that Smith contacted her on October 7 about making
travel arrangements for the IDET procedure and that she made them
on  October  14.  Kosinski denied having told Williams  or  Smith
that Smith would not get medical treatment if he did not sign the
partial C&R.  She also denied having refused to approve a medical
procedure for Smith.
          In  its March 2006 decision on the petition, the  Board
refused  to  set aside the partial C&R.  The Board  first  stated
that  a  C&R can only be set aside because of fraud or duress  on
the  part  of  the  employer;  Smiths complaints  about  Williams
misleading him were therefore irrelevant to the issue whether the
agreement  should be set aside.  The Board found that  Smith  was
not  credible  when he testified that he did not  understand  the
terms  of the partial C&R, but that even if he did not understand
it,  his  misunderstanding could not be a basis  for  setting  it
aside.   The  Board  found  no  credible,  specific  evidence  of
misrepresentation, fraud, or duress on the part of  CSK  Auto  to
coerce  Smith to sign the agreement.  It held that Smiths current
lack  of  medical  benefits was not a reason  to  set  aside  the
partial  C&R  because medical benefits were not affected  by  it.
Finally,  with  respect to Smiths argument that the  partial  C&R
should  be  voided because CSK Auto did not attach all of  Smiths
medical records,3 the Board found that all the available relevant
medical  reports at the time of the C&R were already  filed  with
medical summaries.
          Smith  petitioned for reconsideration of the  decision.
He  argued  that listing Dr. Klimow as his treating physician  in
the  partial  C&R  was misleading and that  all  of  Dr.  Klimows
recommendations and her PPI rating were voided by his  change  of
physician.  He alleged that his due process rights were  violated
because  the  Board  did not permit him to appear  at  a  hearing
before  approving the partial C&R and claimed that  Kosinski  was
playing  games with him by turning on and off his  benefits.   He
          maintained that the Board should not have approved the partial
C&R before the IDET procedure.  He also alleged that Williams had
defrauded him of the settlement money and complained that he  was
rushed into signing the settlement before the IDET procedure  and
never  intended  to  give  up  PTD benefits.   The  Board  denied
reconsideration.
          Smith  appealed  to  the  Alaska  Workers  Compensation
Appeals  Commission, which affirmed the Board, holding  that  the
Board  applied  the proper legal standards and its  findings  are
supported  by substantial evidence in light of the whole  record.
The  Commission  did not discuss the legal standard  for  setting
aside  a  C&R  except to say that it agreed  the  board  was  not
required  to set the agreement aside under Olsen Logging  Co.  v.
Lawson.4  The Commission determined that substantial evidence  in
the  record supported the Boards findings that (1) the settlement
was  plain  and  unambiguous; (2) Smith  was  able  to  read  and
understand the partial C&R when he signed it; and (3)  there  was
no  evidence  of  misrepresentation,  fraud,  or  duress  by  the
employer.
          Smith appeals.
III. STANDARD OF REVIEW
          In  this  case,  we elaborate on Barrington  v.  Alaska
Communications Systems Group, Inc.5 and the standard of review in
appeals  from the Alaska Workers Compensation Appeals Commission.
The legal questions presented here are issues of law involving no
agency  expertise, so we apply our independent judgment to  those
questions and review the decision of the Commission.6
          But  here  we  must also review factual findings.   The
Commission  is  required to review the factual  findings  of  the
Board  using the substantial evidence test7 and is bound  by  the
Boards findings about the credibility of witnesses.8  It may  not
accept new or additional evidence related to an appeal except  in
limited  circumstances.9  In this case, the  Commission  did  not
make  factual  findings but reviewed the Boards factual  findings
for  substantial evidence.  Because the Commissions  decision  is
the final administrative action in a workers compensation case,10
we independently review the Commissions legal conclusion that the
Boards  factual findings were supported by substantial  evidence.
This  necessarily requires us to independently review the  record
and  the Boards factual findings.  When we review the Commissions
legal  conclusions  about the Boards exercise  of  discretion  or
legal  rulings,  we also independently assess the Boards  rulings
and  in  so  doing  apply  the appropriate  standard  of  review.
Substantial evidence to support factual findings is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.11
IV.  DISCUSSION
          Smith seeks to set aside the partial C&R on a number of
grounds, including fraud, duress, and mistake of fact.   As  part
of  his fraud claim, he asserts that the settlement should be set
aside  because his non-attorney representative breached her  duty
to him.  He also argues that he was denied due process because he
did  not appear at the hearing before approval of the partial C&R
and  that the Board failed to follow its regulations in approving
          it.  We address each contention in turn.
     A.   Mistake of Fact
          Smith  first argues that the partial C&R should be  set
aside because of a mistake of fact, relying on Witt v. Watkins.12
Witt  held  that a personal injury settlement could be set  aside
because  of  a mistake of fact; the test set out was whether,  at
the  time  of  signing  the  release, the  releasor  intended  to
discharge the disability which was subsequently discovered.13  But
as  the Commission recognized, we decided in Olsen Logging Co. v.
Lawson  that the Alaska Workers Compensation Act does not  permit
workers  compensation  settlement  agreements  to  be  set  aside
because of unilateral or mutual mistake.14  Smiths arguments that
the  partial C&R should be set aside because he did not know  the
extent  of  his disability or that the IDET procedure would  fail
are  both arguments related to mistake15 and, under Olsen Logging
Co.,  cannot  serve  as  a basis to set aside  the  partial  C&R.
Additionally,  the partial C&R stated that the extent  of  Smiths
disability  may  not fully be known at this  time  and  that  the
disability  may be continuing and progressive in  nature.   Smith
released liability for as yet undiscovered disabilities, injuries
or  damages associated with his condition.  The Board found  that
Smiths  assertion  that he did not understand the  terms  of  the
settlement  was not credible.  This credibility determination  is
binding for any review of the Boards factual findings.16
          Smiths assertions that the Board should have determined
his  earning capacity and that he never intended to give  up  his
PTD  benefits are also related to mistake because they  are  both
based  on  his assertion that the back injury was worse  than  he
expected.   According to Smith, the Board should have  considered
that  the  IDET procedure failed to help him and that he  is  now
permanently and totally disabled.  Although Smith may  have  been
mistaken in his belief that the IDET procedure would resolve  his
back  pain, his mistake cannot serve as a basis for avoiding  the
partial settlement.  Likewise, even if Smith showed that he never
intended  to  give  up his PTD benefits, that showing  could  not
serve  to set aside the partial C&R.  The Commission was  correct
in  holding  that  under Olsen Logging Co. v. Lawson,  a  workers
compensation settlement agreement cannot be set aside because  of
mistake.
     B.   Misrepresentation and Fraud
          Smith  also seeks to set aside the partial C&R  because
of  fraud.   The  Board  refused to do so, finding  no  credible,
specific evidence of misrepresentation or fraud or duress by  the
employer  to  coerce the employee to sign the C&R.   Here,  Smith
argues  that  CSK Auto misrepresented who his treating  physician
was in the partial C&R, that this misrepresentation was material,
and  that  he relied on the misrepresentation.  CSK Auto responds
that  the  Commission was correct in concluding that  substantial
evidence  in  the  record  supported the  Boards  findings  about
misrepresentation and fraud.
          We  have  held that in a workers compensation case,  an
employee  is required to show the following to avoid a settlement
based  on  misrepresentation: (1) a misrepresentation; (2)  which
was  fraudulent or material; (3) which induced the party to enter
          into the contract; (4) upon which the party was justified in
relying.17
          In  the  section  of the partial C&R  setting  out  the
parties  dispute,  CSK  Auto stated, On November  14,  2001,  Dr.
Klimow,  the employees treating physician, approved the  employee
to  return to [positions Smith had held in the ten years prior to
his  work-related injury].  The Board described the agreement  as
containing  an accurate, if sketchy, history of [Smiths]  medical
treatment;  the  Board noted that Dr. Klimow was Smiths  treating
physician  in November 2001 and that the partial C&R showed  that
Smith was being treated by Dr. Anderson as of June 2002.
          We  agree with the Commission that substantial evidence
in  the record supports the Boards conclusion that this statement
was  not a misrepresentation.  A misrepresentation is a statement
that is not in accord with the facts.18  As the Board noted,  Dr.
Klimow  was Smiths treating physician on November 14, 2001,  when
she  indicated  that he could return to work  he  had  previously
done.   But even if the statement were a misrepresentation   that
is, if treating physician meant current treating physician  Smith
could  not have justifiably relied on it because he knew when  he
signed  the  agreement  that  Dr. Klimow  was  not  his  treating
physician.19  Not only does the partial C&R itself state that Dr.
Anderson  was treating Smith in June 2002, Smith listed only  Dr.
Pierson  as  his  treating physician on his workers  compensation
claim form, and he wrote to Dr. Anderson about the IDET procedure
at the time he signed the partial C&R.
          Smith  also  alleges that Williams withheld information
about  PTD benefits or failed to inform him about them and claims
that she misrepresented herself and breached a fiduciary duty  to
him  in  her representation of him in the proceeding.  The  Board
made  no  findings related to these allegations, stating, Whether
or  not there is any basis for the employees assertions that  Ms.
Williams  represented him inappropriately, those  assertions  are
irrelevant.   The  Commission  concurred.   We  agree  with   the
Commission  and  the Board  in order for one  party  to  avoid  a
contract  on  grounds of misrepresentation, the misrepresentation
must be made by the other party to the contract.20  Williams  was
not  a party to the contract, nor was she a representative of CSK
Auto,  so any representation she made cannot be a reason to avoid
the partial C&R.
     C.   Duress
          Smith  argues that the partial C&R should be set  aside
because  of duress.  He asserts that the insurance adjuster  both
withheld the information that she had approved the IDET procedure
and  failed  to make travel arrangements for the procedure  until
after he had signed the settlement agreement.  He also says  that
he was put under duress by Williams, claiming that she threatened
to  withdraw  from representing him unless he signed the  partial
C&R.   The Board concluded that there was no evidence of  duress.
It found that the adjuster preauthorized the procedure by calling
Smiths  doctor on or about September 11, 2002 and that she  never
withdrew  or  threatened to withdraw the  approval.   It  further
found that Smith received compensation throughout the negotiation
process.   It  determined that Smiths allegations about  Williams
          were irrelevant.  The Commission decided that substantial
evidence in the record supported the Boards findings.
          We  agree with the Commission that substantial evidence
in  the  record  supports the Boards finding that  there  was  no
duress  by  CSK  Auto.  The adjusters testimony and  the  written
records   support  the  finding  that  the  IDET  procedure   was
authorized before Smith signed the partial C&R.  The compensation
reports  and  the  adjusters testimony show that  Smith  received
benefits throughout the negotiations.21  The Boards finding  that
CSK Auto never withdrew or threatened to withdraw its approval of
the  IDET procedure is supported by the adjusters testimony  that
she never told Smith or Williams that Smith would not get medical
treatment if he did not sign the partial C&R.22
     D.   Interference with Contractual Benefits
          Smith contends that the partial C&R should be set aside
because he is not getting the benefit of his bargain.  Relying on
Kaiser  v. Royal Insurance Co. of America,23 he argues  that  CSK
Auto  violated  the covenant of good faith and  fair  dealing  by
taking direct action to deprive him of the benefit of the partial
C&R.   His  argument  is  based on the current  lack  of  medical
treatment for his back.
          An  implied  covenant of good faith  and  fair  dealing
exists in all contracts; it requires that each party refrain from
doing anything that would injure the right of the other party  to
receive the benefits of the contract.24  But medical care was not
one of the benefits that Smith received from the partial C&R;  in
fact, Smiths medical care was not affected by the partial C&R  at
all.  Smith preserved his right to get medical and other benefits
not specifically waived in the partial C&R, and CSK Auto reserved
the right to controvert future medical care.25  Both the Board and
the  Commission correctly interpreted the partial  C&R  to  apply
only  to  vocational reemployment and permanent total  disability
benefits.
     E.   Regulatory Violations
          Smith  maintains that the partial C&R  did  not  comply
with the regulatory requirements of 8 AAC 45.160 in that not  all
of  his medical records were submitted with the agreement.26   He
also  argues that the partial C&R should be set aside because  he
did  not have the opportunity to appear at the hearing before the
Board  approved  the partial C&R and because the  Board  did  not
order   an   independent   medical   examination   pursuant    to
AS  23.30.012.  He additionally contends that the Board  violated
his  due  process rights in conducting the hearing  without  him.
Finally,  Smith insists that the Board should not  have  approved
the  partial  C&R before the IDET procedure because  he  was  not
medically  stable and did not know the extent of his disabilities
when he signed the partial C&R.
          When  it  considered Smiths request to  set  aside  the
partial  C&R, the Board mistakenly believed that no  hearing  had
been  held before approval of the settlement and rejected  Smiths
due  process claim, deciding that the Alaska Workers Compensation
Act  does  not require a hearing before approval of a  settlement
and finding that no one had requested a hearing on the settlement
in Smiths case.27  The Board relied on AS 23.30.012 in concluding
          that no hearing was required.  We agree with the Board that
neither  a  hearing  nor  an  impartial  medical  examination  is
required  by  this  section of the statute:  the  Board  has  the
discretion  to order a medical examination or to hold a  hearing,
but  it is not required to do so.28  But AS 23.30.110(c) required
the  parties  to  appear at the scheduled  hearing  because  they
entered  into the settlement only one week before the  originally
scheduled hearing date of October 17, 2002.29  Smiths non-attorney
representative  attended the hearing, but  Smith  did  not.   His
absence is unexplained.30
          The  Board found at the conclusion of the October  2002
hearing  that  the partial C&R appear[ed] to be  in  Smiths  best
interest,  but it is not clear from the record whether the  Board
applied the correct subsection of its regulation when it examined
the settlement.31  The Board was required to determine whether the
settlement  was  in  Smiths  best  interest:   Board  regulations
generally prescribe Board review of settlement agreements as well
as  a  finding  that  the  agreement is  in  the  employees  best
interest.32  In Smiths case, however, the Board needed to make  a
more  searching  inquiry.   When  an  employee  waives  permanent
benefits before medical stability and rating, a Board regulation,
8 AAC 45.160(e), creates a presumption that the settlement is not
in  the employees best interest, and the Board cannot approve the
settlement  unless  there  is  a showing  that  waiver  of  these
benefits is in the employees best interest.
          8 AAC 45.160(e) provides:
          An  agreed  settlement in which the  employee
          waives   medical   benefits,   temporary   or
          permanent   benefits  before  the   employees
          condition is medically stable and the  degree
          of  impairment  is rated, or benefits  during
          rehabilitation  training after  the  employee
          has been found eligible for benefits under AS
          23.30.041(g) is presumed not 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. . . .
          
          This   regulation  affords  protection  to   employees.
Because   the  parties  to  a  workers  compensation   settlement
agreement cannot later avoid an agreement when they are  mistaken
about  the  extent  of  the  employees injury,33  the  regulation
effectively requires the parties either to delay settlement until
the  employee has a clearer idea of the extent of his  disability
or  to  produce  affirmative  evidence  that  waiver  is  in  the
employees interest.  We conclude that 8 AAC 45.160(e) applied  in
Smiths  case because he was not medically stable when the partial
C&R was filed with the Board and that the Board erred as a matter
of  law  by ignoring this regulation when it approved the partial
C&R.
          Smith  relied on 8 AAC 45.160 before the Board and  the
Commission,  as  well as before this court, insisting  throughout
the proceedings that the Board erred in approving the partial C&R
          before he had the IDET procedure, while he was still being
treated  for  his  work-related  injury.   Although  he  did  not
specifically reference subsection (e) of 8 AAC 45.160, Smith  did
raise the issue that he was not medically stable when the partial
C&R  was signed at the Board hearing, in his briefing before  the
Commission,  and  again  in  his  briefing  before  us.   And  in
pleadings  before  the  Board, Smith complained  that  the  Board
chairman did not state what was the best interest of the employee
during a C&R hearing.  At oral argument before us, he stated that
the   Board,  in  approving  the  partial  C&R  before  the  IDET
procedure, did not protect him. Because we treat pleadings of pro
se  litigants less stringently than those of lawyers, we conclude
that Smith adequately raised the issue that we decide here.34
          Here,  the  partial  C&R  was  equivocal  at  best   in
addressing Smiths medical stability.35  It noted that Dr.  Klimow
had  found  him medically stable in August 2001 but  also  showed
that  Smith  was getting TTD benefits and that his  TTD  benefits
were  continuing.36  At the hearing to approve the  partial  C&R,
counsel  for  CSK Auto mentioned both that Dr. Klimow  had  rated
Smith  in  2001 and that Smith was still receiving TTD  benefits.
The  summary  form  that accompanied the partial  C&R  noted  Dr.
Klimows  five percent whole person impairment rating  from  2001.
But  CSK Auto had accepted that Smith was not  and had never been
medically stable in July 2002 when it reclassified all of his PPI
benefits   as  TTD  benefits.   In  March  2002  Smiths  treating
physician,  Dr. Anderson, had recommended that Smith  undergo  an
IDET  procedure  to  relieve his back pain.   In  July  2002  the
adjuster  contacted  Dr.  Klimow, who  agreed  that  Smith  might
benefit from the procedure.  The adjuster then noted, We now have
no  dispute  as  to stationary date as the initial doctor  agrees
with the IDET.  Because there was no factual dispute, we conclude
that  Smith  was not medically stable when he signed the  partial
C&R.   Because  Smith was not medically stable and the  agreement
waived PTD benefits, this partial settlement was presumed not  to
be  in  his  best  interest and could not be  approved  absent  a
showing by a preponderance of the evidence that Smiths waiver  of
permanent total disability benefits was in his best interest.37
          The  Board  has interpreted its regulation as requiring
some  evidence  that  the settlement is  in  the  employees  best
interest.38   Generally,  the  Board  considers  the    employees
testimony in reaching a decision about his best interest.39  Here,
the  Board  did not identify what evidence, if any, overcame  the
presumption that the partial C&R was not in Smiths best interest.
It  is not clear from the transcript whether the Board considered
Smith  medically  stable when it approved the partial  C&R.   The
Board  did  not  ask  Smiths representative what  evidence  might
overcome  the presumption that the settlement was not  in  Smiths
best  interest;  it  simply inquired whether she  discussed  with
Smith   the  difficulties  in  overturning  workers  compensation
settlements.   The  Board  could not  question  Smith  about  the
partial C&R because he was not there.  In the partial C&R,  Smith
gave  up rights to both reemployment and PTD benefits in exchange
for  $10,000.  At oral argument before us, counsel for  CSK  Auto
conceded that if Smith were permanently and totally disabled as a
          result of his injury, his claim could perhaps be worth hundreds
of thousands of dollars.  The Board did not identify any evidence
that  might  have  overcome the presumption that  waiver  of  PTD
benefits before medical stability was not in Smiths interest.
          We  are  troubled by the Boards ready approval  of  the
agreement in the absence of testimony from Smith, particularly in
light  of the fact that the Board had incomplete medical  records
before  it  when it approved the agreement.40  While  failure  to
submit complete medical records might not be reversible error  in
all  cases,41 here it underscores the Boards lack of  a  complete
record  before approval of the agreement, when the agreement  was
presumed not to be in Smiths interest.  Moreover, the partial C&R
contained  only  two statements about Smiths  best  interest:  an
assertion  that the parties believed the settlement  was  in  the
best  interest of the employee and a statement that the  employee
believed  the  partial  C&R  represented  a  fair  and  equitable
settlement   of  this  matter  in  his  best  interests.    These
boilerplate  assertions are inadequate to overcome a  presumption
that waiver of PTD benefits was not in Smiths best interest.
          The   Boards  failure  to  follow  its  own  regulation
regarding  settlement  of claims before  medical  stability,  its
holding  the hearing in Smiths absence, together with the  waiver
of a benefit with potentially significant value, convince us that
the  Boards action in approving the settlement, and later failing
to  set  it  aside, was an abuse of discretion.42  The Commission
erred as a matter of law in affirming the Boards order.43
V.   CONCLUSION
          For the reasons set out above, we REVERSE the decisions
of the Board and the Commission and REMAND to the Commission with
instructions  to  remand  to the Board  for  further  proceedings
consistent with this opinion.
_______________________________
     1     We  refer to CSK Auto, Inc. and its insurance adjuster
collectively as CSK Auto.

     2     To  be eligible for reemployment benefits, an employee
must  be unable to return to his job at the time of injury or  to
other  jobs existing in the labor market that he held in the  ten
years prior to his injury.  AS 23.30.041(e).

     3     8 Alaska Administrative Code (AAC) 45.160(c)(1) (2004)
requires  that  a  settlement agreement  be  accompanied  by  all
medical  reports  in the parties possession, except  for  medical
records that have already been filed.

     4     856  P.2d 1155 (Alaska 1993) (holding that mistake  of
fact  cannot  be  a  basis  to set aside a  workers  compensation
settlement agreement).

     5    198 P.3d 1122 (Alaska 2008).

     6     Id.  at  1125.   We  independently  review  whether  a
regulation applies to a case.  Garner v. State, Dept of Health  &
Soc.  Servs., Div. of Med. Assistance, 63 P.3d 264,  267  (Alaska
2003).

     7    AS 23.30.128(b).

     8    AS 23.30.122, .128(b).

     9    AS 23.30.128(a), (c).

     10     Barrington, 198 P.3d at 1125 (citing AS 23.30.008(a);
Alaska Pub. Interest Research Group v. State, 167 P.3d 27, 41, 45
(Alaska 2007)).

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

     12    579 P.2d 1065 (Alaska 1978).

     13    Id. at 1068-69, 1071 n.18.

     14    856 P.2d 1155, 1159 (Alaska 1993).

     15     See  Witt,  579  P.2d at 1069  (describing  types  of
mistake).

     16    AS 23.30.122, .128(b).

     17     Seybert v. Cominco Alaska Exploration, 182 P.3d 1079,
1094  (Alaska  2008)  (emphasis omitted) (citing  Bering  Straits
Native Corp. v. Birklid, 739 P.2d 767, 768 (Alaska 1987)).

     18    Restatement (Second) of Contracts  159 (1981).

     19     See id.  172 cmt. b (noting that when recipient knows
that assertion is false, reliance is clearly not justified).

     20    Indus. Commercial Elec., Inc. v. McLees, 101 P.3d 593,
598 (Alaska 2004) (quoting Restatement (Second) of Contracts  164
(1981)).

     21    The record reflects that Smith continued to receive TTD
benefits  through February 19, 2003, about four months after  the
Board approved the partial C&R.

     22    As with Smiths misrepresentation and fraud claims, the
Board  and  Commission correctly determined that any  actions  or
statements by Williams cannot be attributed to CSK Auto and  thus
cannot  serve as a basis for setting aside the agreement  due  to
duress.

     23    89 P.3d 740 (Alaska 2004).

     24     Id. at 742 (citing Ramsey v. City of Sand Point,  936
P.2d 126, 133 (Alaska 1997)).

     25    Smith filed written claims for medical and TTD benefits
in August 2003 and December 2004.

     26     8 AAC 45.160(c)(1) requires that every settlement  be
accompanied  by  all  medical reports in the parties  possession,
except  that,  if  a medical summary has been filed,  only  those
medical  reports  not listed on the summary  must  accompany  the
agreed-upon settlement.

     27     The  Board indicated in its decision that it had  not
held  a  hearing before approving the partial C&R.  In fact,  CSK
Autos attorney and Smiths non-attorney representative appeared at
the  scheduled hearing time on October 17, 2002, to request Board
approval of the partial C&R.  After oral argument before us,  CSK
Autos  attorney supplemented the record with a transcript of  the
2002  hearing.  Smith was not at the Board hearing.   The  record
does not explain his absence.

     28     Seybert v. Cominco Alaska Exploration, 182 P.3d 1079,
1091 (Alaska 2008).

     29     AS  23.30.110(c)  states in  part,  If  a  settlement
agreement is reached by the parties less than 14 days before  the
hearing,  the  parties shall appear at the time of the  scheduled
hearing  to state the terms of the settlement agreement.   8  AAC
45.070(d) implements this statutory provision.

     30     Smiths representative stated at the hearing that  she
believed  he was unavailable because he was undergoing  the  IDET
procedure.   Smith underwent the IDET procedure  on  October  30,
2002.

     31     Whether  a regulation applies to a case  is  a  legal
question that we independently review.  Garner v. State, Dept  of
Health  & Soc. Servs., Div. of Med. Assistance, 63 P.3d 264,  267
(Alaska 2003).

     32     8  AAC 45.160(a).  AS 23.30.012(b) currently requires
Board  review of settlements when an employee is not  represented
by  counsel  licensed to practice law in Alaska.  This  provision
was  not  in  effect when Smith signed his settlement  agreement.
Ch. 10,  10, FSSLA 2005.

     33     Olsen  Logging  Co. v. Lawson, 856  P.2d  1155,  1159
(Alaska 1993).

     34    See DeNardo v. Calista Corp., 111 P.3d 326, 330 (Alaska
2005)  (citing Smith v. Sampson, 816 P.2d 902, 906 (Alaska 1991);
Wilkerson v. State, Dept of Health & Soc. Servs., Div. of  Family
&  Youth  Servs., 993 P.2d 1018, 1022 (Alaska 1999))  (concluding
that  pro  se  complaints encompassed discrimination  claim  even
though they did not refer to anti-discrimination statute).

     35     Medical  stability is the date  after  which  further
objectively  measurable  improvement  from  the  effects  of  the
compensable  injury  is not reasonably expected  to  result  from
additional medical care or treatment.  AS 23.30.395(27).

     36     Eligibility for TTD benefits ends when  the  employee
becomes medically stable.  AS 23.30.185.

     37    8 AAC 45.160(e).

     38     See,  e.g., Perkins v. Trident Seafoods  Corp.,  AWCB
Decision No. 06-0189 at 7 (July 13, 2006).  It has also construed
the  workers compensation statute as imposing an affirmative duty
on the Board to determine the rights of the parties.  Id.

     39     Id. (citing Kline v. Swansons, AWCB Decision No.  00-
0094  at 4 (May 11, 2000)) (noting that while an employees belief
is not controlling, the Board considers it in making a decision).

     40    Our review of the record confirms Smiths assertion that
not   all  medical  records  in  the  adjusters  possession  were
submitted to the Board before approval of the partial  C&R.   The
last  medical  summaries  filed before the  hearing  only  listed
medical records through June 25, 2002.  Yet the record shows that
the  adjuster had medical records from August and September 2002,
including  notes from a lumbar discography, before the settlement
was  filed  with the Board.  The Board stated in its decision  on
Smiths  petition  to set aside the partial C&R that  all  of  the
relevant  medical  records had been filed with medical  summaries
before  approval of the agreement.  The Board decision  does  not
explain why the omitted medical records were not relevant.

     41    Cf. Irvine v. Glacier Gen. Constr., 984 P.2d 1103, 1108
(Alaska   1999)  (holding  that  error  in  failing  to  consider
physicians view was harmless).

     42    See Garner v. State, Dept of Health & Soc. Servs., Div.
of  Med. Assistance, 63 P.3d 264, 269 (Alaska 2003) (holding that
agency abused its discretion in failing to consider applicability
of  regulation to case).  Because we reverse the Board  on  other
grounds, we do not need to reach Smiths due process claim.

     43     See  Irvine,  984  P.2d at 1107 (holding  that  Board
committed  legal error in affirming reemployment  decision  where
RBA abused his discretion by not following statute).

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