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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Burke v. Houston NANA, L.L.C. (1/8/2010) sp-6448

Burke v. Houston NANA, L.L.C. (1/8/2010) sp-6448, 222 P3d 851

     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

RORY F. BURKE, )
) Supreme Court No. S- 12346
Appellant, )
) Superior Court No.
v. ) 3AN-03-12715 CI
)
HOUSTON NANA, L.L.C., ) O P I N I O N
LUMBERMANS MUTUAL )
CASUALTY CO., and the ALASKA )
WORKERS COMPENSATION )
BOARD, ) No. 6448 - January 8, 2010
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Joel H. Bolger, Judge.

          Appearances: William J. Soule, Law Office  of
          William  J.  Soule, Anchorage, for Appellant.
          Patricia  L. Zobel, DeLisio Moran Geraghty  &
          Zobel, PC, Anchorage, for Appellees.

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

          CARPENETI, Justice.
          MATTHEWS, Justice, dissenting in part.

I.   INTRODUCTION
          An  employee was injured three times over the  span  of
five months while working as a pipe fitter for his employer.  The
employee  fell twice, injuring his lumbar and cervical spine  and
his hip, and also complained of sharp pain in his right hand that
doctors  attributed to his work.  After he was laid off from  his
Alaska  job,  the  employee returned to his home  in  California,
where  he  began chiropractic treatment for his spinal  injuries.
His employer initially paid benefits without an award; it filed a
notice  of  controversion  after its experts  reported  that  the
employee was medically stable and no longer in need of treatment.
The  Alaska  Workers Compensation Board held  a  hearing  on  the
employees  claim for medical and disability benefits and  decided
that  the employee was entitled to limited chiropractic benefits,
denied  the rest of his claims, and awarded him limited attorneys
fees.   The  employee,  through his attorney,  also  requested  a
reemployment  eligibility evaluation.  The Reemployment  Benefits
Administrator (RBA) determined that the employee was eligible for
an  evaluation.  The employer appealed the RBAs decision  to  the
board;  the  board found that the employee had filed his  request
too late and denied it.
          The  employee  appealed both decisions to the  superior
court.  The superior court affirmed the boards decisions in  most
respects.   We  reverse  the  boards denial  of  temporary  total
disability  benefits,  its  denial of  reimbursement  for  travel
costs,  and  its  reversal of the RBAs decision, and  affirm  the
boards decisions on all remaining issues.
II.  FACTS AND PROCEEDINGS
          Rory  Burke was employed as a pipe fitter on the Alaska
pipeline  for many years, working about half the year  in  Alaska
and  spending  the  rest of the year at his home  in  California.
Burke  worked for Houston NANA, L.L.C.1 off and on for two years.
In  June  2001 he fell when he stepped in a hole that was covered
with wood chips while he was carrying an eighty-pound load down a
hill  near Glenallen.  He strained his hip and shoulder  but  did
not  take  time off work or file a report of occupational  injury
form.2   In  mid-August he again injured himself when he  stepped
into a hole created when a large rock was moved.  Finally, during
the  night  of  October 16, severe cramping and numbness  in  his
right  hand woke him up.  He attributed the hand pain to work  he
had  been  doing, lifting a heavy beam and bolting  heavy  Teflon
pads  in place and operating an impact gun.  He went to an urgent
care clinic in Fairbanks on October 25, 2001, complaining of neck
pain  for  the  previous three months and cramping in  his  right
hand.   The  doctor at the clinic diagnosed right  epicondylitis3
and  cervical neck strain, wrote that the conditions  were  work-
related, and limited Burke to lifting no more than forty  pounds.
Burke signed a report of occupational injury on October 30, 2001.
He  was  laid  off work the same day as part of  a  reduction  in
force.   Burke returned to California in early November.  Houston
NANA   paid  workers  compensation  benefits  without  an   award
effective November 19, 2001.
          On  November  19, 2001, Burke saw Dr. Joel  Taatjes,  a
chiropractor  in Petaluma, California, for treatment  related  to
his  work  injuries.   At  that time,  Dr.  Taatjes  completed  a
California  workers  compensation  form  entitled  Doctors  First
Report  of  Occupational Injury.  Dr. Taatjess  report  estimated
that  Burkes treatment would require approximately thirty  visits
over  a  twelve- to sixteen-week period, or between two to  three
          visits per week.  However, Burke received almost daily treatments
from Dr. Taatjes for about three weeks and then treatments two or
three  times a week for another thirty weeks or so.   During  the
course  of his treatment of Burke, Dr. Taatjes sent Houston  NANA
progress  reports on forms from the State of California  Division
of  Workers  Compensation.  Each form included a  place  for  the
doctor  to  detail  the  treatment plan, including  the  methods,
frequency,  and  duration  of planned  treatments.   Dr.  Taatjes
described the therapy he was conducting, but did not specify  the
number or duration of treatments.  He simply indicated decreasing
frequency as the patients status improves.
          Houston NANA arranged for a panel of doctors to conduct
an  independent medical evaluation (IME) on March 19, 2002.   The
panel  consisted of a chiropractor, Dr. Willat, and an orthopedic
surgeon,  Dr.  Ramsey.  Both doctors examined Burke and  reviewed
his  medical  records.   Both agreed  that  Burke  was  medically
stable, at least with respect to his spinal injuries.  Dr. Ramsey
diagnosed  Burke  with  mild  right carpal  tunnel  syndrome  and
indicated that Burkes work had caused his neck, back, and  carpal
tunnel  problems  on  a  more-probable-than-not  basis.   In  Dr.
Ramseys  opinion, Burke had a slight permanent partial impairment
but  could return to his work as a pipe fitter as long as he  was
not  required  to  use vibrating equipment on a  sustained  basis
because of the carpal tunnel problems.  Dr. Ramsey rated Burke as
having  a  two  percent whole person permanent  impairment  as  a
result  of  the carpal tunnel syndrome.  Dr. Ramsey thought  that
Burke  might  need  future medical care  for  his  carpal  tunnel
syndrome,  although he did not see a need for  immediate  medical
care.   Both  Drs.  Ramsey and Willat felt that  further  passive
chiropractic  treatments like the ones Burke was  receiving  from
Dr. Taatjes were not necessary.
          After  the  IME  reports noted that  Burke  might  have
carpal  tunnel  syndrome,  Dr.  Taatjes  referred  Burke   to   a
neurosurgeon,  Dr.  Guy Corkill.  Dr. Taatjes evidently  believed
that the hand complaints were related to Burkes neck injuries and
wanted  Dr.  Corkill  to identify the reason for  the  continuing
pain.   Dr.  Corkill  examined Burke on May 28,  2002,  diagnosed
cervical disk disease, and referred Burke to Dr. Marcia Luisi,  a
specialist   in   physical  medicine  and   rehabilitation,   for
electrodiagnostic studies.  Dr. Luisi examined Burke on June  18,
2002,  and  performed nerve conduction studies to  determine  the
cause  of  his  right hand complaints.  Dr. Luisi concluded  that
Burke  had  moderate right carpal tunnel syndrome  and  that  the
electrodiagnostic  studies  showed  no  indication  of   cervical
radiculopathy.    Following  Dr.  Luisis  report,   Dr.   Corkill
recommended that Burke get a wrist splint.  On August  23,  2002,
Dr.  Corkill advised Burke to have surgery for his carpal  tunnel
syndrome.   Dr.  James  Glynn, an orthopedic  surgeon,  evaluated
Burke  on  October 2, 2002, and recommended right  carpal  tunnel
release.  Burke had the surgery on November 18, 2002.
          Dr.  Taatjes  referred  Burke  to  Dr.  Don  Davis,   a
chiropractic   neurologist,  for  a  permanent   and   stationary
evaluation  on  September 19, 2002.  Based on his examination  of
Burke  and his review of the medical records, Dr. Davis  believed
that  Burke  was permanent and stationary, except for  his  right
hand.   He  stated  that  in  his  opinion,  Burkes  chiropractic
treatment  up  to  that  time  had been  appropriate  and  should
continue  on an exacerbation basis.  Dr. Davis did not feel  that
Burke  could  return  to  his  work  as  a  pipe  fitter,  noting
restrictions on his ability to bend, lift, carry, push, pull, and
squat.  Dr. Taatjes adopted the report as his own.
          Houston NANA filed a notice of controversion on May  3,
2002,  based on the IME reports.  It controverted temporary total
disability  (TTD)  benefits after May 1, 2002,  and  all  further
chiropractic care and physical therapy.  The controversion  noted
that  the  IME  doctors had determined that Burke  was  medically
stable as of March 19, 2002; it also stated that medical care for
Burkes  right carpal tunnel condition as outlined in Dr.  Ramseys
EME  report would be covered.  A copy of the controversion notice
was sent to Dr. Taatjes.
          Burke  filed a workers compensation claim on  June  26,
2002.   In his claim, he requested TTD benefits from May 2,  2002
through medical stability, permanent partial impairment benefits,
medical costs related to Dr. Taatjess care, transportation costs,
penalties, interest, and attorneys fees.  Houston NANA filed  its
answer to the claim on July 15, 2002.
          Burke  requested  that the Alaska Workers  Compensation
Board  (the  board) order a second independent medical evaluation
(SIME)  to address issues of treatment, functional capacity,  and
medical  stability.   Houston  NANA  agreed  that  an  SIME   was
appropriate in Burkes case, so the board ordered one.   Two  SIME
physicians  evaluated  Burke:  Dr. Marvin  Bloom,  an  orthopedic
surgeon,  and  Dr. Scott Calzaretta, a chiropractor.   Dr.  Bloom
stated  that  Burke  would not improve further  without  cervical
fusion  surgery  and  that even with neck  surgery,  Burke  would
likely not be able to return to his former work as a pipe fitter.
Dr.  Bloom  did not feel that further chiropractic treatment  was
indicated;  he  believed that Burke was medically  stable  as  of
December 2002.  Dr. Bloom rated Burke as having an eight  percent
whole  person impairment related to his spinal injuries.  He  did
not  specifically  discuss  the carpal  tunnel  syndrome  in  the
conclusions in his report.
          Dr.   Calzaretta  thought  that  limited   chiropractic
treatment  was  still appropriate in Burkes  case  but  that  the
frequency of treatment needed to be decreased to one to two times
a  month  rather than two to three times a week.  Dr.  Calzaretta
agreed  with  Dr.  Willat that Burke was  medically  stable  with
respect  to  his  spinal  injuries as of  March  19,  2002.   Dr.
Calzaretta felt that Burke could return to work as a pipe  fitter
as  long  as he was precluded from repetitive pneumatic  activity
with  his right hand.  He also thought that Burke should lift  no
more  than forty pounds overhead to prevent possible injuries  to
his neck and back.
          The  board  held a hearing on Burkes claim on September
4,  2003.   Burke testified in person, and Dr. Taatjes  testified
telephonically.  Burke argued that his treatment with Dr. Taatjes
was reasonable and necessary, even though it was in excess of the
treatment  limits, because he had multiple injuries but continued
to  work  and  because  the chiropractic care  helped  him  avoid
surgery  and  expensive pain medication. He  also  asserted  that
Houston NANA had waived its argument that the treatment plan  was
excessive because it did not specifically object to the  form  of
the  plan  in  its controversion notice:  The notice stated  only
that  the care was not necessary.  Burke also contended that  his
carpal tunnel syndrome was not medically stable from May 2,  2002
through  November  17,  2002,  and that  he  should  receive  TTD
benefits for that period of time.
          Houston NANA called Burkes carpal tunnel argument a red
herring and asserted that Burke was medically stable as of  March
19,  2002.  Houston NANA also argued that Burke had not  met  his
burden  of showing that his chiropractic care was reasonable  and
necessary, especially in light of the treatment standards set out
in  board  regulations.  In addition, it argued that Dr. Taatjess
treatment plans were inadequate in that they did not specify  the
frequency or duration of treatment.
          The  board issued its decision on October 3, 2003.   It
found  that Burke was medically stable as of March 19, 2002,  and
was  therefore not eligible for TTD benefits from March 19, 2002,
until  November 19, 2002, the day after he had surgery for  right
carpal  tunnel  syndrome.  The board stated that,  in  accordance
with  Grove v. Alaska Construction and Erectors,4 it did not have
the  authority  to  award  medical  benefits  in  excess  of  the
regulatory  standards  because  Dr.  Taatjes  had  not  filed   a
treatment  plan  that  conformed  to  the  requirements   of   AS
23.30.095(c).5  The board rejected Burkes argument  that  Houston
NANA  had waived its objection to the form of the treatment  plan
when  it  controverted chiropractic treatment.  The board awarded
payment  for  one chiropractor visit per month from May  2002  to
November 2002 because Drs. Calzaretta and Davis thought that some
chiropractic care was still indicated and one visit per month was
within  the  regulatory standards.  It denied Burkes request  for
reimbursement  of his costs to attend the hearing,  finding  that
his  in-person testimony was not necessary for the limited  issue
on  which  he  prevailed.  The board also  decided  that  only  a
limited fee award was appropriate and ordered Burkes attorney  to
submit  another affidavit, segregating the time he spent  working
on  the chiropractic care issue.  Burke filed a timely appeal  in
the  superior  court,  alleging numerous  errors  in  the  boards
decision.
          Before  the  board issued a decision on the TTD  claim,
Burke,  through  his  attorney, wrote the  Reemployment  Benefits
Administrator  to request a reemployment eligibility  evaluation.
Acknowledging  that the request was late, Burke set  out  unusual
and  extenuating circumstances to justify his tardy  application.
The  unusual  and extenuating circumstances were that  (1)  Burke
suffered a series of injuries, not just a single injury,  in  his
employment;  (2) time loss benefits did not begin until  November
19,  2001, more than thirty days after the last injury; (3) Burke
thought  he would be able to return to his work as a pipe fitter;
and (4) no doctor had predicted within the first ninety days that
Burke  would  not be able to return to his job  at  the  time  of
injury.  Burke also urged the RBA to reject any argument that the
          request for an eligibility evaluation was untimely under the
boards  discovery  rule because, according to  Burke,  the  plain
meaning  of  the  statute  only  required  the  RBA  to  make   a
determination of unusual and extenuating circumstances excusing a
late-filed request.  In response to Burkes request, Houston  NANA
wrote the RBA, arguing that Burkes request should be denied.   On
November  12, 2003, the RBA explained his interpretation  of  the
statutory  deadlines,  determined  that  Burke  had  unusual  and
extenuating  circumstances that justified his late  request,  and
decided that Burke was entitled to an evaluation for reemployment
benefits.   The  RBA  noted that in the first ninety  days  after
giving his employer notice of his injury, there was no indication
that  rehabilitation might be needed.  Houston NANA appealed  the
RBAs  decision  to the board.  The board held a  hearing  on  the
reemployment benefits issue on March 10, 2004.
          In  its  April  14,  2004 decision on the  reemployment
question,  the  board  decided  that  the  RBA  had  abused   his
discretion  in finding that Burke was entitled to an  eligibility
evaluation.   The  board declared that it had a long  history  of
applying a discovery rule in considering the statutory ninety-day
deadline  for applying for a reemployment eligibility evaluation.
Under  the  boards discovery rule, the employee has  ninety  days
from  the  date  he has knowledge of his need for  retraining  to
apply  for an eligibility evaluation.  The board determined  that
Burke  had notice that he would need retraining at the latest  on
February  25,  2003, the date of Dr. Blooms SIME report.  Because
Burkes request was made in September, it was deemed untimely; the
board  therefore  reversed  the  RBAs  decision  and  denied  and
dismissed  Burkes  request  for an eligibility  evaluation.   The
board  did  not  review  the RBAs determination  that  Burke  had
unusual  and  extenuating circumstances excusing  his  late-filed
request,  nor  did it make any findings related  to  unusual  and
extenuating circumstances.
          Rather  than  file  a second appeal,  Burke  asked  the
superior  court  to  amend his points on appeal  to  include  the
issues raised in the boards reemployment benefits decision.   The
court  did  so  after receiving no opposition from Houston  NANA.
The  superior court affirmed the boards decision in all respects,
except  for  its award of attorneys fees; the court remanded  the
case  to  the board for a redetermination of the fee award.   The
parties  subsequently  settled  the  fee  issue,  and  the  board
approved the settlement.  Burke then moved the superior court for
entry of a final judgment; this appeal followed.
III. STANDARD OF REVIEW
          In  an  appeal of a decision of a superior court acting
as an intermediate court of appeal in a workers compensation case
we  independently review the boards decision.6  Factual  findings
are  reviewed  to  see  if  they  are  supported  by  substantial
evidence.7  Substantial evidence is such relevant evidence  as  a
reasonable mind might accept as adequate to support a conclusion. 8
For  legal  questions involving agency expertise  or  fundamental
policy  questions,  we apply the reasonable  basis  standard  and
defer  to  the agency if its interpretation is reasonable.9   For
legal questions involving no agency expertise, we substitute  our
          judgment and apply the rule of law that is most persuasive in
light  of precedent, reason, and policy.10  We review an  agencys
application  of its regulation to the facts to determine  whether
the agencys decision was arbitrary, unreasonable, or an abuse  of
discretion.11  We will find an abuse of discretion  when  we  are
left  with  the definite and firm conviction that a  mistake  has
been made.12
IV.  DISCUSSION
     A.   Burke Is Not Entitled to Chiropractic Care that Exceeds
          the Regulatory Standards.
          
          Burke  argues  that  the board erred  when  it  ordered
Houston NANA to pay for only limited chiropractic treatment.   He
asserts  that  (1) Dr. Taatjes filed a treatment plan;   (2)  the
chiropractic  care he received was reasonable and necessary;  and
(3)  Houston  NANA was barred by estoppel or waiver from  arguing
that  the treatment plan was in any way deficient.  Houston  NANA
responds  that  the  board  is legally  precluded  from  awarding
benefits  in excess of the regulatory treatment standards  unless
certain conditions are met, and, because Dr. Taatjes did not meet
the  conditions,  it  cannot be made to pay for  the  treatments.
Specifically, Houston NANA asserts that Dr. Taatjes was  required
to  file  a  treatment plan that conformed with the  requirements
of  AS 23.30.095(c) within fourteen days of the beginning of  his
treatment of Burke; because his treatment plan did not conform to
the  statutory requirements, Houston NANA cannot be made  to  pay
for  treatments in excess of the regulatory standards.   It  also
argues  that  the  frequency  standards  are  not  a  defense  or
statutory right that may be waived by an employer.
          Alaska  Statute  23.30.095(c) contains  two  provisions
detailing  the information a health care provider must supply  in
order  to  receive payment for continuing and multiple treatments
of  a  similar  nature.  First, the health care provider  or  the
employee must provide notice of injury and treatment to the board
and  the  employer  within fourteen days of commencement  of  the
treatment.13  Next, if a claim is made for a course of continuing
and  multiple  treatments  that exceeds  the  standard  treatment
frequency,  the health care provider is required to give  a  more
detailed  treatment plan to both the employer and the employee.14
The treatment plan must include objectives, modalities, frequency
of treatments, and reasons for the frequency of treatments.15  The
statute further specifies that, in the event a treatment plan  is
not  furnished, neither the employer nor the employee can be made
to  pay  for  treatments  that exceed the frequency  standards.16
Finally,  the  statute  requires the board to  adopt  regulations
establishing standards for frequency of treatment.17
          The   board   has  adopted  a  regulation  establishing
frequency  standards  that apply to all continuing  treatments.18
This regulation provides, in part:
               (f)   If  an injury occurs on  or  after
          July  1,  1988,  and requires continuing  and
          multiple treatments of a similar nature,  the
          standards   for  payment  for  frequency   of
          outpatient treatment for the injury  will  be
               as follows.  Except as provided in (h) of
          this   section,  payment  for  a  course   of
          treatment for the injury may not exceed  more
          than  three treatments per week for the first
          month, two treatments per week for the second
          and  third months, one treatment per week for
          the   fourth  and  fifth  months,   and   one
          treatment  per  month for the  sixth  through
          twelfth   months.   Upon  request,   and   in
          accordance  with AS 23.30.095(c),  the  board
          will, in its discretion, approve payment  for
          more frequent treatments.
          
               (g)   The board will, in its discretion,
          require  the  employer to pay for  treatments
          that exceed the frequency standards in (f) of
          this section only if the board finds that
          
                    (1)  the written treatment plan was
          given to the employer and employee within  14
          days after treatments began;
          
                    (2)  the treatments improved or are
          likely  to  improve the employees conditions;
          and
          
                    (3)  a preponderance of the medical
          evidence  supports  a  conclusion  that   the
          boards  frequency standards are  unreasonable
          considering  the  nature  of  the   employees
          injury.[19]
          
          1.    Dr.  Taatjes failed to file an adequate treatment
plan.
          The   parties   do  not  dispute  that   Dr.   Taatjess
chiropractic   treatments  were  in  excess  of  the   regulatory
standards  and  that he filed some type of treatment  plan.   The
board  refused  to  order Houston NANA  to  pay  for  the  excess
treatments  because  Dr. Taatjes did not file  a  treatment  plan
pursuant to AS 23.30.095.  Burke claims that Dr. Taatjes filed  a
treatment  plan that substantially complied with the requirements
of  AS 23.30.095(c), but he does not elaborate how the forms that
Dr. Taatjes filed complied with the statute.
          We agree with Houston NANA that Dr. Taatjess filings do
not  meet the requirements of AS 23.30.095(c).  Dr. Taatjes filed
a  California workers compensation form within fourteen  days  of
beginning his treatment of Burke; this form appears to  meet  the
first  requirement  of  AS 23.30.095(c),  that  the  health  care
provider furnish notice to the board and employer that he will be
providing  medical  care  or treatment requiring  continuing  and
multiple treatments of a similar nature.  But because Dr. Taatjes
treated  Burke on a more frequent basis than permitted under  the
applicable  regulation, Dr. Taatjes was additionally required  to
provide  a  treatment plan to both Burke and  Houston  NANA  that
included  objectives, modalities, frequency  of  treatments,  and
reasons for the frequency of treatments.20  Dr. Taatjes failed to
          do this.
          Dr.  Taatjess  first filing did not  suggest  that  Dr.
Taatjes  would  be  treating  Burke  more  frequently  than   the
regulatory standards:  It stated that treatment would consist  of
thirty visits over a twelve- to sixteen-week period.  The initial
notice  described  the  modalities  of  treatment  but  not   the
objectives.  After the initial notice, Dr. Taatjes filed periodic
progress reports on forms from the California Division of Workers
Compensation.   Had he supplied all of the information  requested
on the forms, they might have contained sufficient information to
be  considered conforming:  The forms ask the provider to specify
the methods, frequency, and duration of planned treatments.21  But
Dr.  Taatjes  did  not  supply all of the requested  information;
specifically, he did not set out the frequency or duration of the
planned  treatments.   The  most  he  said  about  frequency   of
treatment  was  decreasing  frequency  as  the  patients   status
improves.   Although Burke presented testimony that  Dr.  Taatjes
was  not  aware  of  the requirement that he  supply  a  detailed
treatment  plan, the legislature placed the burden  on  a  health
care  provider to provide adequate information if  he  is  to  be
reimbursed for treatments in excess of regulatory standards.22
          Burke implicitly argues that it would be inequitable to
require  Dr. Taatjes to conform to Alaskas statutory requirements
because  he had no way of knowing that Alaska had limits  on  the
number  of  treatments.   This argument is  unavailing,  however,
because  Dr. Taatjes had avenues available to him to comply  with
the  statutory requirements.  Although Dr. Taatjes  practices  in
California,  the  record reflects that his office  contacted  the
Alaska  Workers  Compensation  Board  at  one  point  about   the
possibility  of  a  lien.   In addition,  his  office  apparently
discussed possible differences between Alaska and California  law
with  the  compensation carrier.  Furthermore, Dr. Taatjes  could
simply  have completed the California progress reports completely
and accurately.
          Burke   argues  that  the  record  does   not   contain
substantial evidence to support the boards finding that there was
no   dispute  about  whether  a  conforming  treatment  plan  was
provided, because he disputed the adequacy of the treatment plan.
Burke has never articulated how Dr. Taatjess filings conformed to
or  even  substantially complied with the statutory  requirements
for  a  treatment  plan.  Before the board, he only  argued  that
Houston  NANA was estopped from claiming that the treatment  plan
was  nonconforming because it had not raised that  issue  in  its
notice  of controversion. Substantial evidence thus supports  the
boards  conclusion that it was undisputed that Houston  NANA  did
not receive a conforming plan within fourteen days of treatment.
          2.   Houston  NANA  is  not estopped from  raising  the
               adequacy of the treatment plan.
               
          Burke  also argues that Houston NANA should be estopped
from  raising  the  issue of the noncompliance  of  Dr.  Taatjess
treatment plan because it did not explicitly do so in its  notice
of  controversion.  He contends that if Houston NANA had told Dr.
Taatjes  of the deficiencies in the plan, Dr. Taatjes could  have
          stopped or modified his treatments or changed his treatment plan
to   conform  to  NANAs  perceived  requirements.   Houston  NANA
responds  that  failure to follow the statutory requirements  for
the  treatment  plan  cannot be waived, citing  Grove  v.  Alaska
Construction and Erectors.23
          The  board  relied  on Grove to deny Burkes  claim  for
chiropractic treatment in excess of the frequency standards.   It
found that the frequency standards in the regulation could not be
waived  unless  the  treatment  plan  complied  with  the   terms
of  AS 23.30.095(c), stating that, [a]s in Grove, it has not been
disputed that the employer was not provided with a treatment plan
pursuant to AS 23.30.095 within fourteen days of the treatment.
          Burkes  argument is similar to the one we  rejected  in
Grove.   There,  we  explicitly  rejected  the  notion  that  the
employer  has  the  burden of objecting to the  frequency  of  an
employees medical treatments.24  Rather, we determined  that  the
legislature  placed  the burden on the health  care  provider  to
provide a conforming treatment plan if the provider wanted to  be
paid  for visits in excess of the treatment standards.25  We have
also  held  that because the requirement is statutory, the  board
cannot  waive the prerequisite that a treatment plan be furnished
within fourteen days of commencement of treatment.26
          Although Burke argues that the board had express  power
to  award  treatment that exceeded the frequency  standards,  the
boards  power  is  limited to situations in which  the  statutory
requirements of filing a conforming treatment plan are  met.   To
accept Burkes argument that Houston NANA had the duty to tell Dr.
Taatjes  that the treatment plans did not conform to the  statute
would place the burden on the employer to object to the frequency
of  an employees medical treatments; we explicitly rejected  this
construction of the statute in Grove.27  Although Dr. Taatjes may
have  filed  some sort of plan, it was not a plan  that  met  the
requirements  of  the statute.  Because the  statute  requires  a
conforming plan, filing a nonconforming plan does not satisfy the
statute.28
          3.   Rebutting the presumption of compensability
               
          Burke  also  argues  that  he  is  entitled  to  excess
chiropractic  care  because  Houston  NANA  did  not  rebut   the
presumption  of  compensability.  As Burke correctly  notes,  the
presumption  of  compensability applies to  every  element  of  a
factual  determination.29  He does not, however, explain how  the
presumption analysis interacts with the frequency standards.
          The  presumption  analysis  does  not  apply  to  every
possible  issue  in  a  workers  compensation  case.    We   have
previously  held  the presumption of compensability  inapplicable
when  evaluating a reemployment plan because the  parties  agreed
that  the  employees claim was covered by the provisions  of  the
workers compensation statute and applying the presumption did not
promote  the  goals  of encouraging coverage and  prompt  benefit
payment.30
          Here, the board did not use the presumption analysis in
evaluating  Burkes  chiropractic  care  claim.   The  presumption
analysis  might  apply to the question whether  any  chiropractic
          care was necessary because that would raise the issue whether
part  of the claim was covered at all.  It could also apply if  a
conforming  treatment plan had been filed because the  regulation
related  to  excess  treatment requires a  factual  determination
about the efficacy of the treatment.31  But we cannot see how the
presumption analysis can be used to defeat the explicit statutory
provision about frequency of treatment.
          Even  if the presumption analysis applied, Houston NANA
rebutted  the  presumption  of compensability  with  Dr.  Willats
report,  which stated that as of March 19, 2002, Burke no  longer
benefitted  from  passive chiropractic care of the  type  he  was
receiving  from Dr. Taatjes.  It was then incumbent on  Burke  to
prove  that  further treatment was reasonable and  necessary  and
that  he  was  entitled to treatment in excess of  the  frequency
standards.   The board decided that Burke had shown that  further
chiropractic  care was reasonable and necessary, but  it  limited
the  frequency  of  care to the number of  visits  authorized  by
regulation  because Dr. Taatjes had not filed  a  treatment  plan
that  conformed  to  the requirements of  AS  23.30.095(c).   The
boards decision with respect to chiropractic care was correct  in
all respects.
     B.   Substantial Evidence Does Not Support the Boards Denial
          of  TTD  Benefits from March 19, 2002 Through  November
          19, 2002.
          
          Burke contends that he is entitled to TTD benefits from
March  19,  2002,  through November 18, 2002 because  his  carpal
tunnel  syndrome was not medically stable as of March  19,  2002,
the  date  that  the  board determined  he  had  reached  medical
stability.  He alleges that substantial evidence does not support
the  boards finding of medical stability because evidence in  the
record  shows that Burke was in fact being treated for his carpal
tunnel  syndrome prior to his carpal tunnel release surgery.   In
addition, Burke points out that his case is similar to Thoeni  v.
Consumer  Electronic Services32 in that by  the  time  the  board
issued  its  decision,  it knew that the predictive  opinions  on
which  it  relied  to  find him medically  stable  were  wrong.33
Houston  NANA maintains that substantial evidence in  the  record
supports  the  boards  decision.  It points  out  that  both  IME
physicians stated that Burke was medically stable as of March 19,
2002,  and  that one of the SIME physicians shared that  opinion.
It  also  argues that until the time of surgery,  Burke  was  not
being actively treated for carpal tunnel syndrome and that in any
event, he was not disabled because of the carpal tunnel syndrome.
          In analyzing Burkes claim for TTD, the board found that
Burke  was entitled to the presumption of compensability that  he
was still temporarily totally disabled by virtue of his testimony
and  that of Drs. Davis and Corkill.  It then found that  Houston
NANA  had rebutted the presumption through the opinions  of  Drs.
Calzaretta, Willat, and Ramsey that Burke was medically stable as
of March 19, 2002.
          The  board  then decided that Burke had not proven  his
claim.   It rejected his argument that his carpal tunnel syndrome
was not stable and was disabling from March 19 until his surgery.
          Its decision was based on two findings: (1) prior to the carpal
tunnel surgery, no treatment was being recommended for the  right
wrist,  and (2) there was insufficient evidence that the employee
was  precluded  from working . . . due to the  condition  of  his
wrist.   The board also stated that the medical evidence  in  the
record  regarding the employees wrist indicated that the symptoms
were   subsiding  and  that  future  treatment  would   only   be
appropriate if the wrist deteriorated.  The board determined that
Burke  was  medically stable as of March 19, 2002, based  on  the
opinions  of  Drs.  Calzaretta, Willat,  Ramsey,  and  Bloom  and
concluded that Houston NANA had overpaid TTD benefits from  March
19, 2002, through May 1, 2002.
          Because  Burke  had  been receiving TTD  benefits,  his
disability  presumptively continued, and  Houston  NANA  had  the
burden of producing substantial evidence that Burke was no longer
disabled.34   We  held  in Thoeni that a  prediction  of  medical
stability   that  turns  out  to  be  incorrect  cannot   provide
substantial evidence to rebut the presumption.35  In Burkes case,
as  in Thoeni, the boards determination of medical stability  was
based  on  opinions that proved to be incorrect.  When the  board
made  its  decision in Burkes case, it knew that he had  in  fact
undergone  the  testing and treatment that Houston  NANAs  expert
recommended  for  treatment  of  his  carpal  tunnel    syndrome.
Houston  NANA  never  controverted this  treatment  and  did  not
contend  that  it  was  unreasonable or medically  unnecessary.36
Because of this, the opinions of Drs. Ramsey and Willat could not
constitute substantial evidence on which the board could rely  to
find that Burke was medically stable.
          The board also relied on the opinions of Drs. Bloom and
Calzaretta in its decision.  Dr. Bloom expressly stated that,  in
his  opinion,  Burke was medically stable as  of  December  2002.
Although  Dr.  Bloom  also said that Burke  did  not  derive  any
benefit  from  chiropractic care after  March  19,  2002,  Burkes
chiropractic  care was unrelated to his carpal  tunnel  syndrome.
The  section  of  Dr. Calzarettas report about medical  stability
deals  only with Burkes spinal complaints, not his carpal  tunnel
syndrome, and does not constitute substantial evidence  to  rebut
the  presumption that Burkes wrist was not medically stable.  Dr.
Calzaretta  describes Burkes carpal tunnel syndrome as resolving,
in  contrast  to  his  spinal injuries,  which  he  describes  as
maximally improved.
          We   also  hold  that  Houston  NANA  did  not  present
substantial  evidence  to rebut the presumption  that  Burke  was
unable to work.37  The only evidence before the board that  might
have  suggested that Burke could work were the opinions  of  Drs.
Ramsey  and Calzaretta.  But both doctors placed restrictions  on
Burkes  work  activities,  and  the  restrictions  were  directly
related  to  his carpal tunnel syndrome.38  Also,  carpal  tunnel
complaints,  along  with neck problems, prompted  Burke  to  seek
medical  attention in Fairbanks in 2001 and caused Dr. Ramsey  to
give  Burke a permanent partial impairment rating.  Houston  NANA
presented no evidence that Burke was able to earn the wages which
the  employee was receiving at the time of injury in the same  or
any  other employment.39  Because Houston NANA failed to  present
          substantial evidence to rebut the presumption that Burke
continued to be disabled, the board erred in denying his  request
for TTD benefits.
          C.    The Board Abused Its Discretion in Denying Burkes
          Travel Costs.
          Burke  argues  that the board abused its discretion  in
failing  to  award him his costs for traveling  to  Anchorage  to
attend  his  workers compensation hearing in person.  He  asserts
that because the board alone determines witness credibility,  in-
person  testimony can be critical to a claimants case and  claims
that there is no way to know in advance of a hearing whether  the
board  will consider the presence of an applicant necessary.   He
points  out  the risks that a claimant takes in not appearing  in
person,  such  as production of surreptitiously recorded  videos.
Houston  NANA responds that the issues in this case  were  narrow
and  related  to  medical testimony, so Burke should  have  known
before the hearing that his credibility was not an issue.
          The  board can award the necessary and reasonable costs
relating  to the preparation and presentation of the issues  upon
which  the  applicant prevailed at the hearing  on  the  claim.40
Included  in  the costs that the board can award  are  reasonable
travel  costs  to attend a hearing if the board  finds  that  the
applicants attendance is necessary.41  We agree with Burke that it
is  difficult  for  a  claimant to know in  advance  whether  his
credibility  will  be at issue and his presence  at  the  hearing
necessary.   Houston NANA contends that the issues in  this  case
were  only related to medical testimony, but the issues the board
faced  went  beyond  expert testimony.  The board  made  findings
about Burkes ability to continue his work as a pipe fitter, which
related  to  the  issue  of temporary disability  and  presumably
required   testimony  from  Burke  about  his  work  duties   and
limitations.   In  addition, had the board  determined  that  Dr.
Taatjes  had  filed  an adequate treatment plan,  it  could  have
considered  Burkes testimony about the efficacy  of  chiropractic
care  in  deciding whether treatments in excess of the regulatory
standards were justified.42  Also, Burke has now prevailed on his
temporary  disability claim and therefore  is  eligible  for  the
award of necessary and reasonable costs.43  For these reasons, the
board  abused its discretion in failing to award Burke his travel
costs to attend the hearing in person.
     D.   The  Board Erred in Reversing the Reemployment  Benefit
          Administrators Decision.
          
          Burke also appeals the boards second decision, in which
the  board reversed the determination of the Reemployment Benefit
Administrator   that  Burke  was  entitled  to   a   reemployment
eligibility  evaluation.  Burke maintains that the plain  meaning
of  8  AAC 45.520 and former AS 23.30.041(c)44 entitle him to  an
evaluation and that the boards imposition of a discovery rule45 is
invalid.  He also contends that the board failed in its  duty  to
advise  him  how to pursue his rights and denied him due  process
and equal protection.
          Houston  NANA  responds that the discovery  rule  is  a
reasonable  interpretation  of the workers  compensation  statute
          because it furthers the statutes purpose of providing fair and
prompt  resolution  of  compensation  cases.   It  asserts   that
substantial evidence supports the boards determination that Burke
knew or should have known that he would not be able to return  to
his  work as a pipe fitter by February 25, 2003, and argues  that
no   unusual  or  extenuating  circumstances  existed  under  the
regulation to excuse Burkes subsequent late filing.
          The  main issue Burke raises is the application of  the
following  statute  and  regulation  to  his  case.   Former   AS
23.30.041(c) provided:
          If  an  employee suffers a compensable injury
          that  may  permanently preclude an  employees
          return  to  the employees occupation  at  the
          time of injury, the employee or employer  may
          request   an   eligibility   evaluation   for
          reemployment  benefits.  The  employee  shall
          request  an eligibility evaluation within  90
          days  after  the employee gives the  employer
          notice  of  injury  unless the  administrator
          determines  that the employee has an  unusual
          and  extenuating circumstance  that  prevents
          the employee from making a timely request.[46]
          
          The  board adopted a regulation, which became effective
July 2, 1998, interpreting unusual and extenuating circumstance.47
The regulation provides:
               (a)     An   employee   requesting    an
          eligibility   evaluation   for   reemployment
          benefits  more than 90 days after giving  the
          employer notice of the injury must submit  to
          the administrator
                    (1)  a written request for the evaluation;
                    (2)   a doctors prediction that the
          injury  may permanently preclude the employee
          from  returning  to the job at  the  time  of
          injury; and
                    (3)  a written statement explaining
          the  unusual  and  extenuating  circumstances
          that   prevented  the  employee  from  timely
          requesting the eligibility evaluation.
               (b)   Within 30 days after receiving the
          information  required  under  (a)   of   this
          section,  the administrator will  notify  the
          parties,  by  certified  mail,  whether   the
          employee   had  an  unusual  and  extenuating
          circumstance that prevented the employee from
          making  a  timely request for an  eligibility
          evaluation.    An  unusual  and   extenuating
          circumstance exists only if the administrator
          determines  that  within the  first  90  days
          after  the employee gave the employer  notice
          of the injury
                    (1)   a  doctor failed  to  predict
          that   the   employee  may   be   permanently
                    precluded from returning to the job at the
          time of injury;
                    (2)  the employee did not know that
          a   doctor  predicted  the  employee  may  be
          permanently precluded from returning  to  the
          job at the time of injury;
                    (3)   the employer accommodated the
          employees limitation and continued to  employ
          the employee;
                    (4)   the employee continued to  be
          employed;
                    (5)    the  compensability  of  the
          injury  was  controverted and  compensability
          was not resolved; or
                    (6)   the employees injury  was  so
          severe  that  the employee was physically  or
          mentally   prevented   from   requesting   an
          eligibility evaluation.
               (c)   Within 10 days after the decision,
          either  party  may  seek  a  review  of   the
          decision   by  requesting  a  hearing   under
          AS 23.30.110.[48]
          
          The  board  adopted  a  regulation  detailing  how   an
employee should request a reemployment eligibility evaluation  at
the  same time it promulgated the regulation defining unusual and
extenuating   circumstances.49    This   regulation,   8   Alaska
Administrative Code 45.510,  provides in relevant part:
               (a)   For injuries occurring on or after
          July 1, 1988, an employee or an employer  may
          request   an   eligibility   evaluation   for
          reemployment benefits.  The request  must  be
          in  writing, complete in accordance with  (b)
          of   this  section,  and  submitted  to   the
          administrator.
                (b)  The administrator will consider  a
          written request for an eligibility evaluation
          for     reemployment    benefits    if    the
          compensability  of the injury  has  not  been
          controverted and if the request is  submitted
          together with
                    (1)   an explanation of the unusual
          and extenuating circumstances, as defined  in
          8 AAC 45.520, for a request that is made more
          than 90 days after the date the employee gave
          the employer notice of the injury; and
                    (2)   a physicians prediction  that
          the   injury  may  permanently  preclude  the
          employee from returning to the job at time of
          injury.[50]
          
          Burke  did  everything that was  required  by  the  new
regulations.   His  request  for an  eligibility  evaluation  was
submitted  more  than ninety days after he  gave  notice  of  his
          injury.  Accordingly, he submitted a written request for an
evaluation,  a  doctors prediction that his  work-related  injury
would  permanently preclude him from returning to his work  as  a
pipe   fitter,  and  a  statement  explaining  the  unusual   and
extenuating circumstances that prevented him from making a timely
request  for  an eligibility evaluation.  No one argues  that  by
January  28,  2002 ninety days after Burke signed the  notice  of
injury   a  doctor had predicted that Burke would  be  unable  to
return  to  his job at the time of injury.  Indeed,  Dr.  Taatjes
predicted  on  March 15, 2002, that Burke would  be  released  to
working  status by April 15, 2002.  But instead of following  its
regulations, the board looked back to a prior period  to  find  a
rule that barred Burkes request.
          Before the two new regulations took effect in 1998, the
board  had developed through adjudication a discovery rule to  be
used in considering reemployment eligibility evaluation requests.51
Under  the  boards  discovery rule, an  employee  who  failed  to
request a reemployment eligibility evaluation within ninety  days
of  providing notice of the injury to the employer as required by
former  AS  23.30.041(c) was required to request  the  evaluation
within  ninety days of the date the employee knew or should  have
known  that  he might not be able to return to the occupation  at
the  time  of  injury.52  This case presents two  questions:  (1)
whether the regulations adopted in 1998, which did not explicitly
contain  a discovery rule, should be read as continuing the  rule
despite  their silence, and, if not,  (2) whether, following  the
adoption of the regulations, the board had the power to impose  a
discovery  rule  by  adjudication and thereby  hold  that  Burkes
request  was  untimely.   We conclude that  the  answer  in  both
instances is no.
          1.   Whether  the  1998  regulations,  which  did   not
               explicitly  contain a discovery  rule,  should  be
               read as continuing the rule despite their silence
          When the board promulgated its regulations interpreting
former  AS  23.30.041(c), it codified its prior  decisions  about
what  constituted  an  unusual  and  extenuating  circumstance.53
Neither  regulation mentions the discovery rule.54  The  conflict
between  the  previously-imposed discovery rule and the  proposed
regulation interpreting unusual and extenuating circumstances was
brought  up  in public comments about the regulation:   A  public
commenter,  a  workers compensation attorney,   filed  a  comment
noting  that the proposed regulation was a departure  from  board
case  law  imposing a discovery rule and raised the concern  that
the  regulation  would leave open the amount of time  an  injured
employee may request reemployment benefits.55  The board did  not
change  the  text of the regulation in response to the comment.56
From  this there is at least a suggestion that the board declined
to  continue, by means of its rulemaking authority, the discovery
rule  it had previously adopted through adjudication.  The boards
consideration  of the discovery rule at the time  it  promulgated
the  regulations  further persuades us that the  board  must  use
rulemaking   rather   than   adjudication   to   effectuate   the
requirements  that an employee must meet in order  to  request  a
reemployment eligibility evaluation under former AS 23.30.041(c).57
          2.   Whether  the board had the power, in the  face  of
               its decision to adopt new regulations that did not
               include  a  discovery rule, to impose a  discovery
               rule by adjudication
               
          Burke asserts that the board cannot by adjudication add
requirements  to  the  law that neither the legislature  nor  the
executive branch in its rule-making power chose to add to the Act
or  regulations, respectively.  We agree: If the board wished  to
add  to  the deadlines it explicitly set in the regulations   via
adoption  of  a  discovery rule  it was  required  to  do  so  by
regulation.58
          We  have previously held that an administrative  agency
can  set  and  interpret  policy using  adjudication  instead  of
rulemaking,   absent  statutory  restrictions  and  due   process
limitations,59  and  noted that the board  has  broad  powers  to
administer the Alaska
Workers  Compensation Act, including the authority  to  interpret
statutes.60  But the boards power is not unlimited.   Alaska  law
requires an agency to follow certain procedures, including public
notice  and  an  opportunity for public comment,  before  it  can
supplement    or   amend   a   regulation.61    Alaska    Statute
44.62.640(a)(3)  defines  regulation  to  include   every   rule,
regulation,  order,  or standard of general  application  or  the
amendment, supplement, or revision of a rule, regulation,  order,
or standard adopted by a state agency to implement, interpret, or
make  specific the law enforced or administered by [the  agency].
(Emphasis added.)
          Whether  an agency action is a regulation is a question
of  law  that does not involve agency expertise, so we apply  our
independent judgment.62  We have previously addressed  the  issue
whether an agency action is an interpretation or an amendment  of
a regulation.63  In making this determination, we have looked at a
variety of factors.  We have compared the agency action with  the
statutory  indicia of a regulation, including whether the  action
implements,  interprets or makes specific  the  law  enforced  or
administered  by the state agency and affects the  public  or  is
used by the agency in dealing with the public.64  Noting that many
agency actions that are not regulations can affect the public, we
have looked at the distinction drawn by the Court of Appeals  for
the District of Columbia between internal agency practices, which
do  not  require notice and comment rulemaking, and  regulations,
which  do.   That  court identified the critical  feature  of  an
internal agency practice as agency actions that do not themselves
alter the rights or interests of the parties, although [they] may
alter the manner in which the parties present themselves or their
viewpoints to the agency.65  Finally, we have looked to see if the
agency  action  provides new requirements or makes  the  existing
requirements more specific.66
          Using  these  standards, we conclude  that  the  boards
discovery rule is a regulation that amends or supplements  8  AAC
45.510  and 45.520.  The discovery rule, according to the  board,
implements,   interprets,   and  makes   more   specific   former
AS 23.30.041(c),67 and it clearly affects the public  without the
          discovery rule, Burkes reemployment eligibility evaluation
request would have been accepted.  The discovery rule is also the
type of agency action that alters the rights of the parties:   It
works to modify the requirements employees must meet in order  to
qualify   for   an   eligibility  evaluation  under   former   AS
23.30.041(c).   Finally,  it  changes  the  requirements  for   a
reemployment eligibility evaluation request from those set out in
the  regulations:  With the discovery rule, an  employee  who  is
requesting  an evaluation more than ninety days after  notice  of
injury  may  no  longer  satisfy the  statutory  requirements  by
submitting   a  written  request  to  the  Reemployment   Benefit
Administrator  that  is  complete  in  accordance  with  [8   AAC
45.510(b)].68
          The dissent argues that it was reasonable for the board
to  interpret its regulation as creating a new ninety-day  period
to   request   reemployment  benefits  and  that  it   would   be
unreasonable  to interpret the regulation to allow  an  unlimited
time  to file a request once an extenuating circumstance ended.69
As  to  the  first  point, it is true that the board  could  have
adopted a regulation to provide for a new ninety-day period,  but
it  did  not do so.  This is critical, because there is no  doubt
that the interpretation given by the board here  enforcement of a
discovery  rule   interprets and makes more specific  the  former
statute  and  it does so in a way that alters the rights  of  the
parties.  In these circumstances, an agency must act through rule-
making,  not adjudication.70  As to the dissents second  argument
that  it  would  be unreasonable to interpret the  regulation  as
allowing an unlimited time to file a request  the legislature  in
the  former  statute set no limit upon requests once unusual  and
extenuating  circumstances  were shown;  rather,  it  gave  broad
discretion to the Reemployment Benefit Administrator to  consider
the  circumstances  justifying a late application.71   Here,  the
delay  was  about  three months, certainly  not  an  unreasonable
amount  of  time  given the length of time  about sixteen  months
that passed before it had become evident that Burke would not  be
able to return to his former occupation.
          The  dissent  concludes that the  boards  determination
that  the  new regulation contained a discovery rule was  readily
predictable.   But  that  conclusion  ignores  that  the  workers
compensation   attorney  commenting  to  the  board72   and   the
Reemployment  Benefits Administrator73 both came to the  opposite
conclusion.   And  even if one had divined that the  board  might
ignore the legal requirement that it act through rule-making, not
adjudication,  when  it  interprets and  makes  more  specific  a
regulation  in  a  way that alters the rights of  a  party,  such
prescience would not justify the boards action.
          Because the board chose to establish by regulation  the
procedure  an applicant for a reemployment eligibility evaluation
must  use, it is bound by those regulations unless and  until  it
repeals  or  amends the regulation using the proper  procedure.74
Administrative  agencies are bound by their regulations  just  as
the  public is bound by them.75  If the board wished to  apply  a
discovery  rule  to requests that were made after the  ninety-day
period  defined in the statute but which also met  the  statutory
          excuse of unusual and extenuating circumstances  as Burkes
request did in this case  it was obligated to promulgate  such  a
rule  under Alaska law.  We hold that the discovery rule  imposed
in  this case is invalid because the board did not adopt it as  a
regulation  under  AS  44.62.010-.950. We therefore  reverse  the
boards   decision   that   reversed  the   Reemployment   Benefit
Administrators  determination  finding  Burke  eligible   for   a
reemployment eligibility evaluation.76
V.   CONCLUSION
          Because  substantial  evidence  does  not  support  the
boards  conclusion that Burke was not entitled  to  TTD  benefits
from  March  19  to  November 19, 2002,  we  REVERSE  the  boards
decision  denying him TTD benefits for that period of  time.   We
also REVERSE the boards refusal to order reimbursement for Burkes
travel to attend the hearing and its reversal of the Reemployment
Benefit  Administrators decision.  We AFFIRM the boards  decision
in all other respects.
MATTHEWS, Justice, dissenting in part.
Introduction
          Todays  opinion  holds that the  board  erred  when  it
decided  that  the  ninety-day period to request  an  eligibility
evaluation  for  reemployment benefits starts  when  an  employee
knows or should know that his injury may permanently prevent  him
from returning to his job.1  The court reasons that to reach this
conclusion  the board would have had to promulgate  a  regulation
under the Administrative Procedure Act (APA) and could not do  so
by  interpreting  the  applicable  statute  and  regulations.   I
disagree.
          The board concluded that AS 23.30.041(c) required Burke
to  request an evaluation within ninety days after the  point  at
which  he reasonably should have known that he needed retraining.
Since  Burke knew by February 25, 2003, that he could not  return
to his job, and did not request an evaluation until September 11,
2003,  198  days  later, the board held that Burkes  request  was
untimely.   The  boards conclusion that the statutory  ninety-day
deadline  began to run anew when Burke knew or should have  known
that he needed retraining was consistent with prior board rulings
that  knowledge of the need for reemployment benefits re-triggers
the  running of the 90 day period to request these benefits.  The
board  noted  that  its ruling was necessary  in  order  to  give
meaning  to  the  statute in accordance with the purpose  of  the
legislature.   It  observed that under the  reemployment  benefit
administrators  (RBA)  conflicting  interpretation,  an  employee
could  request  reemployment benefits years,  or  decades,  after
being advised of the need for retraining.
          In  my view the boards ruling was correct.  Nothing  in
the   regulations  concerning  subsection  .041(c)  undercut  the
validity  of the boards prior rulings.  Burke did not  rely  upon
the   APA    which  requires  agencies  to  act  by  promulgating
regulations in certain circumstances.  Further, the APA  did  not
prohibit the board from ruling as it did.
The Discovery Rule
          The  courts  discussion is, for me at  least,  hard  to
follow.   One  problem  lies with the  courts  use  of  the  term
discovery rule.  A discovery rule is a rule relieving a  claimant
from  compliance  with a statutory limitations period  where  the
claimant  reasonably  lacks the opportunity  to  have  discovered
sufficient  information  to  file a claim.2   Once  the  claimant
discovers or should have discovered sufficient information  about
the  claim,  the  whole period of limitations is retriggered  and
begins  to run anew.3  Thus the discovery rule in Alaska has  two
parts.   What  might  be  called Part  A  grants  relief  from  a
statutory limitations period, while what might be called  Part  B
retriggers  the  limitations period.  Both  parts  are  rules  of
statutory  interpretation.  We assume that the legislature  would
not  wish  to impose a deadline on a claimant before the claimant
has  discovered  his  claim.  We also assume  that  once  such  a
discovery  has been made the legislature would want the statutory
deadline  to  begin to run.4  Confusingly, the court  (except  in
footnote 45) uses the term discovery rule only to refer  to  Part
B,  the retriggering aspect of the discovery rule.5  It also does
          not seem to recognize that the discovery rule is a rule of
presumed  legislative  intent designed to balance  two  competing
policies:  the basic fairness of insuring a plaintiffs  right  to
seek   relief,  and  the  interests  that  underlie   limitations
periods.6
The Boards Retriggering Ruling Followed Established Law
          Under  AS  23.30.041(c) employees had  ninety  days  to
apply   for   an   eligibility  evaluation   unless   extenuating
circumstances  prevented a timely submission.7   The  extenuating
circumstances  provision  was a type of discovery  rule  granting
relief from the limitations period  thus encompassing what I have
called  Part  A  of the discovery rule.  But subsection  .041(c),
like   other   statutes  of  limitations,  said   nothing   about
retriggering the statutory period.  In other words, no Part B was
expressed.
          The  regulations  defined extenuating circumstances  to
include cases where the worker was not told by his physician that
he  would  not be able to return to his job within the ninety-day
period.8  Here, the worker met this extenuating circumstance:  he
was not told of his inability to return to work within the ninety-
day  period.  Rather, he was told nearly sixteen months after the
event.   But  he  did not apply for retraining  until  more  than
ninety  days  after that.  Was his application  time-barred?   To
answer  this  question one must interpret  the  statute  and  the
regulations.  Did the statute and regulations mean that when  the
worker   received   notice   and  the  extenuating   circumstance
terminated  the worker had a new ninety-day period  in  which  to
apply?  Or did they mean that the worker had an indefinite period
in  which  to  apply?  Both the statute and the regulations  were
silent on this issue.
          The  board  decided  that there was  a  new  ninety-day
period.   This interpretation was readily predictable.  Decisions
of this court have uniformly applied what I have called Part B of
the  discovery rule: when conditions excusing late  filing  of  a
claim no longer exist, a new deadline for filing is imposed  that
is  equal in duration to the legislatively set deadline.9   Prior
decisions  of  the  board,  decided both  before  and  after  the
regulations  became effective, had recognized  and  applied  this
rule to .041(c)s ninety-day deadline.10  As the board stated, the
Board has a long, consistent history of finding that knowledge of
the need for reemployment benefits re-triggers the running of the
90 day period to request these benefits.11
          The  boards  ruling in this case that a new  ninety-day
period  would  begin  to  run when the  extenuating  circumstance
terminated was as correct as it was predictable.  The regulations
are  silent  on  the question of whether a new deadline  will  be
imposed.   In  light  of this silence, there  was  no  reason  to
believe  that the boards prior rulings would not continue  to  be
effective.  Indeed, if the regulations had explicitly stated that
once extenuating circumstances ended, the worker had an unlimited
time  to  file  an  application, they probably  would  have  been
invalid12  because they would not have been consistent  with  the
statutory purpose of requiring applications within a short period
of time.13
          For  me, this would be the end of the discussion.   But
todays  opinion  holds that any retriggered  ninety-day  deadline
should  be  established by regulation.  Because it was  not,  the
opinion  holds  that  the boards ruling is  invalid  and  workers
therefore  had  an unlimited or indefinite time  to  apply  after
extenuating circumstances terminated.14  I view this holding with
considerable  skepticism because its result  conflicts  with  the
legislative intent underlying the ninety-day limit, our own  case
law,  and  the  boards case law.  The court bases this  seemingly
counter-intuitive  conclusion on the APA.15   For  the  following
reasons, I do not think that the APA should guide our decision.
Burke  Did  Not Raise Any Contention Regarding the Administrative
Procedure Act
          Burke  did not make any argument before the board,  the
superior  court,  or  this  court relying  on,  citing,  or  even
mentioning the APA.  Instead, Burke argued that because the board
in  promulgating  the regulation did not provide  for  a  renewed
ninety-day deadline, the board did not want such a deadline.   In
todays  opinion the court states:  Burke asserts that  the  board
cannot  by adjudication add requirements to the law that  neither
the legislature nor the executive branch in its rule-making power
chose  to  add to the Act or regulations, respectively.  16   The
full  sentence  in Burkes brief from which this  quote  is  taken
reads:  Neither the RBA nor the board can add requirements to the
law  that neither the legislature nor the executive branch in its
rule-making  power  chose  to  add to  the  Act  or  regulations,
respectively.   What Burke means by this statement  is  that  the
board  could  not hold that a new ninety-day period is  triggered
because  doing  so  would  be  contrary  to  the  intent  of  the
legislature and the intent of the board; he does not  argue  that
doing so would be contrary to the provisions of the APA requiring
agencies to act by adopting regulations.17
          Because no argument regarding the APAs requirements was
raised,  the appellee has not had a fair opportunity to weigh  in
on the question of whether the boards ruling should be considered
invalid  because it should have been expressed as  a  regulation.
As  already  noted, Burke also did not raise the  APA  contention
before  the  board or the superior court.  Therefore, this  court
has  not received the benefit of the analysis of the parties, the
board,  or  the  superior  court  on  this  point.   Under  these
circumstances, it seems to me that whether the APA precluded  the
board   from   adjudicatively  interpreting   the   statute   and
regulations   should  properly  play  no  part  in  this   courts
decision.18
The Administrative Procedure Act Was Not Violated
          My  conclusion that the APA should not be considered in
this  case  seems especially well justified given the opacity  of
the  question  of  under what circumstances the APA  may  require
rulemaking.  In Alyeska Pipeline Service Co. v. State, Department
of  Environmental  Conservation,19  we  recognized  the  conflict
between   the  broad  language  of  the  APA  and  the  practical
exigencies of agency action:
               Although the definition of regulation is
          broad,  it does not encompass every  routine,
               predictable interpretation of a statute by an
          agency.  Nearly every agency action is based,
          implicitly    or    explicitly,     on     an
          interpretation  of  a statute  or  regulation
          authorizing  it  to act.  A requirement  that
          each  such  interpretation  be  preceded   by
          rulemaking    would   result   in    complete
          ossification of the regulatory state. .  .  .
          Although the Administrative Procedure Act may
          require  rulemaking  in  cases  in  which  an
          agencys   interpretation  of  a  statute   is
          expansive  or unforeseeable, or in  cases  in
          which   an   agency   alters   its   previous
          interpretation   of   a   statute,   obvious,
          commonsense  interpretations of  statutes  do
          not require rulemaking.[20]
          
          Todays  opinion  argues that the  APA  applies  to  the
boards  interpretation because the boards interpretation is  new:
It  works to modify the requirements employees must meet in order
to   qualify  for  an  eligibility  evaluation  under  former  AS
23.30.041(c)  and it changes the requirements for a  reemployment
eligibility  evaluation  request  from  those  set  out  in   the
regulations.21  But the boards interpretation was neither new nor
a  change.  This court has consistently adhered to Part B of  the
discovery rule, holding that statutory deadlines spring  to  life
anew  once  conditions excusing initial noncompliance  with  them
have ended.22  There was no reason to suppose that these holdings
would  not  apply to the ninety-day deadline in AS  23.30.041(c).
The  board,  indeed,  had always applied  just  such  a  rule  to
subsection  .041(c).23   Since  the  regulations  are  completely
silent  on  the  subject  of the deadline  to  be  imposed  after
extenuating circumstances come to an end, there was no reason  to
think  that  the boards prior rulings on that subject  would  not
apply.   And if it were supposed that the regulations signaled  a
change  from the prior interpretation of subsection .041(c),  the
boards  rulings in the Gillen and Jerry cases which were  decided
under  the  regulations (Gillen more than three years before  the
boards  decision  in  this case) would put an  end  to  any  such
notion.24
          All of the quoted factors mentioned in Alyeska Pipeline
point to the conclusion that the boards decision in this case was
permissibly  made  as  an  adjudication  that  did  not   require
rulemaking  under  the  APA.   This  case  does  not  involve  an
expansive  or unforeseeable interpretation, nor is it a  case  in
which  an  agency  had altered its previous interpretation  of  a
statute.25  Instead, the boards interpretation was in accord with
its prior decisions and was therefore foreseeable.26  Further, in
light  of the decisions of this court, the board, and the  intent
of  the  legislature,  the boards ruling  was  also  an  obvious,
commonsense  interpretation[] of the statute  and  regulations.27
Here,  as in Alyeska Pipeline, I would conclude that the  agencys
action do[es] not require rulemaking.28
Conclusion
          Alaska  Statute 23.30.041(c) is a statutory  expression
of  Part  A  (relief from a statutory deadline) of the  discovery
rule.   It  is  silent as to Part B (retriggering the  deadline).
Before  and  after  the  adoption of the regulations,  the  board
interpreted  the  statute,  in accordance  with  Part  B  of  the
discovery  rule,  to  retrigger  the  ninety-day  deadline   once
exigencies  had passed.  The regulations  which concerned  relief
but  not  retriggering  did nothing to call  this  interpretation
into  question.  Burke did not contend that the APA was violated.
The  boards  reaffirmation  in  this  case  of  its  longstanding
interpretation of the statute did not, in any event, violate  the
APA  because  the  APA does not apply to the foreseeable,  common
sense rulings of an agency.
          For  these  reasons, I would affirm the boards  ruling.
On  the  other  issues presented by this case, I agree  with  the
courts opinion.

_______________________________
     1     We  refer  to  Houston NANA, L.L.C. and  its  insurer,
Lumbermans Mutual Casualty Co., collectively as Houston NANA.

     2     Burke testified that he filed a report with the safety
department  so that a similar accident did not happen to  another
worker; he called it a near miss form.

     3     Epicondylitis is the inflammation of the epicondyle or
the  tissues  adjoining the epicondyle of the humerus.   Dorlands
Illustrated   Medical  Dictionary  564  (28th  ed.   1994).    An
epicondyle  is  a  prominence  or projection  above  the  rounded
projection  of the bone.  Id. at 367, 544, 564.  The  humerus  is
the  bone  that extends from the shoulder to the elbow.   Id.  at
779.  Tennis elbow is a type of epicondylitis.  Id. at 564.

     4    948 P.2d 454 (Alaska 1997).

     5    AS 23.30.095(c) provides:

               A   claim   for   medical  or   surgical
          treatment,  or treatment requiring continuing
          and  multiple treatments of a similar  nature
          is  not  valid  and enforceable  against  the
          employer  unless,  within 14  days  following
          treatment,  the  physician  or  health   care
          provider giving the treatment or the employee
          receiving  it  furnishes to the employer  and
          the board notice of the injury and treatment,
          preferably on a form prescribed by the board.
          .  .  . When a claim is made for a course  of
          treatment  requiring continuing and  multiple
          treatments  of a similar nature, in  addition
          to  the notice, the physician or health  care
          provider  shall  furnish a written  treatment
          plan  if the course of treatment will require
          more  frequent  outpatient  visits  than  the
          standard  treatment frequency for the  nature
          and  degree  of the injury and  the  type  of
          treatments.   The  treatment  plan  shall  be
          furnished  to  the employee and the  employer
          within  14 days after treatment begins.   The
          treatment   plan  must  include   objectives,
          modalities,  frequency  of  treatments,   and
          reasons for the frequency of treatments.   If
          the  treatment  plan  is  not  furnished   as
          required  under this subsection, neither  the
          employer nor the employee may be required  to
          pay  for treatments that exceed the frequency
          standard.   The board shall adopt regulations
          establishing   standards  for  frequency   of
          treatment.
          
     6     Dougan v. Aurora Elec., Inc., 50 P.3d 789, 793 (Alaska
2002).

     7    DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).

     8    Id. (quoting Grove, 948 P.2d at 456).

     9     DeNuptiis  v. Unocal Corp., 63 P.3d 272,  277  (Alaska
2003).

     10     Circle De Lumber Co. v. Humphrey, 130 P.3d  941,  946
(Alaska 2006).

     11    Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960
(Alaska 1998).

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

     13    AS 23.30.095(c).

     14    Id.

     15    Id.

     16    Id.

     17    Id.

     18    8 Alaska Administrative Code (AAC) 45.082 (2004).

     19    8 AAC 45.082(f)(g) (2004).

     20    AS 23.30.095(c).

     21     The California progress report forms do not ask about
the  objective  of  the  treatments,  however.   AS  23.30.095(c)
requires  that  a  treatment  plan  contain  the  objectives   of
treatment.

     22     See AS 23.30.095(c); see also Grove v. Alaska Constr.
and  Erectors,  948 P.2d 454, 457 (Alaska 1997) (The  statute  is
clear that it is the employees health care provider who must take
steps if the statutory frequency of that treatment is exceeded.).

     23    948 P.2d at 454.

     24    Id. at 457.

     25     Id.; see also Hale v. Anchorage Sch. Dist., 922  P.2d
268,  270  (Alaska  1996)  (holding that physical  therapist  was
required to file a conforming treatment plan within fourteen days
of beginning treatment).

     26     Crawford & Co. v. Baker-Withrow, 73 P.3d  1227,  1229
(Alaska 2003) (citing Grove, 948 P.2d at 457).

     27    Grove, 948 P.2d at 457.

     28     Even if we were to evaluate Burkes estoppel claim  on
the  merits,  it would fail.  Estoppel requires an  assertion  by
word  or  conduct, reasonable reliance, and resulting  prejudice.
Tufco,  Inc.  v.  Pac. Envtl. Corp., 113 P.3d  668,  671  (Alaska
2005).   Burke has not clearly identified the assertion on  which
he  relied,  nor  has  he  shown  that  he  was  prejudiced.   AS
23.30.095(c) provides that neither the employer nor employee  can
be  made  to  pay  for  excess treatments when  the  health  care
provider fails to file a conforming plan.

     29     See Sokolowski v. Best W. Golden Lion Hotel, 813 P.2d
286, 292 (Alaska 1991).

     30     Rockney v. Boslough Constr. Co., 115 P.3d 1240,  1244
(Alaska 2005).

     31    8 AAC 45.082(g) (2004).

     32    151 P.3d 1249 (Alaska 2007).

     33    Id. at 1255-56.

     34    See Grove v. Alaska Constr. and Erectors, 948 P.2d 454,
458 (Alaska 1997) (Once an employee is disabled, the law presumes
that  the  employees  disability  continues  until  the  employer
produces substantial evidence to the contrary. (citing Bailey  v.
Litwin Corp., 713 P.2d 249, 254 (Alaska 1986))).

     35    151 P.3d at 1256.

     36    In its notice of controversion, Houston NANA indicated
that  it  would cover treatment for Burkes carpal tunnel syndrome
as outlined in Dr. Ramseys EME report.

     37    It is not clear whether Houston NANA seriously contends
that  Burke  could  in  fact work.  Its arguments  at  the  board
hearing  related only to the issue of medical stability, and  its
brief  before  this court takes inconsistent positions.   At  one
point  in  the brief it claims that there is no medical  evidence
that  Mr.  Burke  was unable to work because of his  mild  carpal
tunnel syndrome, while elsewhere in the same brief it states that
there  is no dispute . . . regarding the nature or extent of  Mr.
Burkes disability.

     38     Dr. Calzaretta imposed an additional restriction that
Burke  not  lift more than forty pounds overhead to  prevent  any
further neck or back strain.

     39    AS 23.30.395(16) (defining disability).

     40    8 AAC 45.180(f) (2004).

     41    8 AAC 45.180(f)(13) (2004).

     42    See 8 AAC 45.082(g)(2) (2004).

     43    See 8AAC 45.180(f) (2004).

     44    Former AS 23.30.041(c) (1988), amended by ch. 10,  17,
FSSLA 2005.

     45     The dissent criticizes this opinions use of the  term
discovery rule.  But this court uses the term as the parties used
it  in their briefs: as shorthand for the judicial interpretation
of  a  statute of limitations that (1) excuses a failure  to  act
when  a claimant in unaware of facts necessary to appreciate that
he  has  a claim and then, once such appreciation is gained,  (2)
retriggers  the  running of the limitations  period.   Burke,  in
attacking the boards decision, said this in his opening brief:

          The  Act  contains  no discovery  rule.   The
          boards  own regulation contains no  discovery
          rule.   Thus, the board was wrong .  .  .  to
          adopt  a de facto discovery rule against  the
          injured  worker.  The RBA was correct because
          Mr.  Burke  met  the laws requirements.   The
          legislature  could  have  included   such   a
          discovery rule in the Act.  The lack of it is
          evidence the legislature did not want it .  .
          . .
          
Burke thus argued that the statute excused his failure to seek an
evaluation  within  the  original  ninety-day  period  under  the
circumstances  of his case and nowhere contained any  requirement
that he act within ninety days of a retriggering event.

          Houston  NANA, replying to Burkes argument, entitled  a
section of its brief, There is a Reasonable Basis for the  Boards
Adoption of the Discovery Rule,  and mentioned the discovery rule
eight  times over the next six pages.  Houston NANA in its  brief
relied  on the retriggering obligation of the discovery  rule  to
support its position.

     46    This statutory scheme  putting the burden of requesting
an eligibility evaluation on the worker within narrow time limits
no  longer  exists:   The 2005 amendments to the  Alaska  Workers
Compensation  Act require the Reemployment Benefits Administrator
to  order an eligibility evaluation whenever the employee is  not
able to return to his or her employment at the time of injury for
a period of ninety consecutive days.  Ch. 10,  17, FSSLA 2005.

     47    Alaska Administrative Code, Register 146 (July 1998).

     48    8 AAC 45.520 (2004).

     49    Alaska Administrative Code, Register 146 (July 1998).

     50    8 AAC 45.510(a) & (b) (2004).

     51     See  Harsen v. B & B Farms, AWCB Decision No. 94-0253
(Sept.  30,  1994);  see  also Waters  v.  Grace  Drilling,  AWCB
Decision  No.  95-0046 (Feb. 17, 1995). But see Bales  v.  State,
Dept  of  Natural Res., AWCB Decision No. 96-0104  at  15-16  n.5
(Mar. 12, 1996) (questioning validity of discovery rule).

     52     Waters,  AWCB Decision No. 95-0046 at 5-6  (Feb.  17,
1995); Harsen, AWCB Decision No. 94-0253 at 10 (Sept. 30, 1994).

     53     Williams v. Municipality of Anchorage, AWCB  Decision
No. 98-0273 at 12 (Oct. 30, 1998).

     54    See 8 AAC 45.510 and 45.520 (2004), set out supra at 28-
29 and 30.

     55     Comment by Theresa Henneman to proposed 8 AAC 45.520,
Department  of Labor Proposed Regulations for the Alaska  Workers
Compensation Board (Sept. 1997).

     56     Compare  8  AAC  45.520 and proposed  8  AAC  45.520,
Department  of Labor Proposed Regulations for the Alaska  Workers
Compensation Board (Sept. 1997).

     57     See Patel v. INS, 638 F.2d 1199, 1204 (9th Cir. 1980)
(holding  that  agency abused its discretion in adding  criterion
through  adjudication  that  it  had  previously  considered  and
withdrawn during rulemaking).  But see Mehta v. INS, 574 F.2d 701
(2d Cir. 1978) (reaching opposite conclusion).

     58     See  Jerrel v. State, Dept of Natural Res., 999  P.2d
138,  143-44 (Alaska 2000) (holding that administrative  agencies
must  comply  with AS 44.62 when issuing regulations pursuant  to
delegated  statutory authority);  see also Alaska  Ctr.  for  the
Envt  v.  State,  80  P.2d 231, 243 (Alaska 2003)  (holding  that
adoption  of  standard  defining major energy  facility  did  not
amount to regulation requiring formal adoption).

     59    Amerada Hess Pipeline Corp. v. Alaska Pub. Util. Commn,
711  P.2d 1170, 1178 (Alaska 1986); see also 1 Richard J. Pierce,
Jr.,  Administrative Law Treatise  6.9 (4th ed. 2002) (discussing
when  courts consider rulemaking necessary); 1 Charles  H.  Koch,
Jr.,  Administrative Law and Practice  2.12  [4]  (2d  ed.  1997)
(discussing required rulemaking).

     60     DeNuptiis v. Unocal Corp., 63 P.3d 272,  277  (Alaska
2003);  see  also Bloom v. Tekton, Inc., 5 P.3d 235, 238  (Alaska
2000) (noting that board had consistently interpreted the workers
compensation act to allow an employee to substitute  a  physician
in certain circumstances).

     61    AS 44.62.190, .200.215.

     62     Alaska Ctr. for the Envt v. State, 80 P.3d  231,  243
(Alaska 2003) (citations omitted).

     63     Id.  at 243-44; see also Jerrel, 999 P.2d at  143-44;
Kachemak  Bay  Watch, Inc. v. Noah, 935 P.2d 816, 825-26  (Alaska
1997).

     64     Jerrel,  999  P.2d  at  143 (citations  omitted);  AS
44.62.640(a)(3).

     65     Batterton v. Marshall, 648 F.2d 694, 707  (D.C.  Cir.
1980)  (quoted  in Kachemak Bay Watch, Inc., 935  P.2d  at  825).
AS  44.62.640(a)(3)  similarly excludes from  the  definition  of
regulation rules that relate[] only to the internal management of
a state agency.

     66    Alaska Ctr. for the Envt, 80 P.3d at 244.

     67    Gillen v. Glen Mills Constr., AWCB Decision No. 00-0255
at 7-9 (Dec. 12, 2000).

     68    8 AAC 45.510(a) (2004).

     69     In  fact, the boards opinion does not say that it  is
interpreting  its  regulation at all.  Instead,  it  purports  to
interpret  the  statute, former AS 23.30.041(c), as  including  a
discovery  rule.   Its  decision in this case  does  not  discuss
application  of  the  regulations to Burkes facts,  nor  does  it
explain  why the regulation  which conspicuously does not contain
a discovery rule  would not apply to him.

     70     Jerrel v. State, Dept of Natural Res., 999 P.2d  130,
143 (Alaska 2000); AS 44.62.640(a)(3).

     71    Former AS 23.30.041(c).

     72    See supra text accompanying n.55.

     73    See supra at 11.

     74    See Jerrel, 999 P.2d at 143-44; see also Tunik v. Merit
Sys.  Prot. Bd., 407 F.3d 1326, 1341 (Fed. Cir. 2005) (concluding
that  regulation subject to notice and comment rulemaking  cannot
be  overturned except through notice and comment rulemaking); Am.
Fedn  of  Govt  Employees,  AFL-CIO, Local  3090  v.  Fed.  Labor
Relations  Auth., 777 F.2d 751, 758-60 (D.C. Cir. 1985)  (stating
that  to  repeal or modify regulation, agency must do so  through
rulemaking rather than adjudication).

     75     Brandon  v. State, Dept of Corr., 73 P.3d 1230,  1235
(Alaska  2003); Trs. for Alaska v. Gorsuch, 835 P.2d  1239,  1244
(Alaska  1992);  see United States v. Nixon, 418  U.S.  683,  696
(1974) (noting that regulation binds Executive Branch until it is
amended or revoked).

     76    Because we uphold the RBAs determination that Burke was
eligible for a reemployment eligibility evaluation (on the ground
that the board failed to adopt the discovery rule as regulation),
it  is not necessary for us to reach Burkes alternative arguments
that the board failed in its duty to advise him how to pursue his
rights,  that it denied him due process, and that it  denied  him
equal protection.

1    Slip Op. at 24-36.

     2     See,  e.g.,  Cameron v. State,  822  P.2d  1362,  1365
(Alaska  1991)  (The  discovery rule  developed  as  a  means  to
mitigate  the harshness that can result from the . . . preclusion
of  claims where the injury provided insufficient notice  of  the
cause of action to the plaintiff.).

     3     See, e.g., Johns Heating Serv. v. Lamb, 129 P.3d  919,
926  (Alaska 2006); Roach v. Caudle, 954 P.2d 1039, 1041  (Alaska
1998);  Cameron,  822  P.2d  at 1365-67;  Greater  Area  Inc.  v.
Bookman, 657 P.2d 828, 829 (Alaska 1982).

     4     See  Cameron,  822 P.2d at 1365 n.5  and  accompanying
text.

     5    See Slip Op. at 24, 25, 29, 30, 31, 33, 34, 35, and 36.

     6    Cameron, 822 P.2d at 1365.

     7    Former AS 23.30.041(c) provided:

               If  an  employee suffers  a  compensable
          injury  that  may  permanently  preclude   an
          employees  return to the employees occupation
          at  the  time  of  injury,  the  employee  or
          employer    may   request   an    eligibility
          evaluation  for reemployment  benefits.   The
          employee   shall   request   an   eligibility
          evaluation within 90 days after the  employee
          gives  the  employer notice of injury  unless
          the administrator determines the employee has
          an  unusual and extenuating circumstance that
          prevents  the employee from making  a  timely
          request.   The  administrator  shall,  on   a
          rotating  and  geographic  basis,  select   a
          rehabilitation  specialist  from   the   list
          maintained  under (b)(6) of this  section  to
          perform the eligibility evaluation.
          
     8    Former 8 AAC 45.520.  See Slip Op. at 26-27.

     9    See supra note 3.

     10    See Jerry v. Chandler Corp., 2004 WL 305352; Gillen v.
Glen  Mills  Constr., 2000 WL 1862603; Stark v. Stark-Lewis  Co.,
1998  WL 771054; Waters v. Grace Drilling, 1995 WL 143757; Harsen
v. B & B Farms, 1994 WL 773328.
          Stark,  supra,  is  a good example of  a  board  ruling
interpreting  subsection  .041(c)  before  the  regulations  were
effective.  In Stark, the notice of injury was given on September
24,  1996,  but the employee did not request an evaluation  until
August 12, 1997.  Reversing a contrary determination of the  RBA,
the  board  found  that until June 3, 1997, the employee  had  no
reason  to believe he could not return to his usual work.   Since
the  employees request was made within ninety days of this  date,
it  was  held to be timely.  The board noted, in accordance  with
its  prior  decisions, that the 90-day period for  requesting  an
eligibility  evaluation begins to run when the employee  knew  or
should have known that he might not be able to return to the work
he was doing at the time of injury.  Id. at *5.
          Not   long  after  the  regulations  in  question  were
adopted,  the RBA concluded, just as the RBA did in  the  present
case, that in light of the new regulations there is no new 90-day
limit  imposed after an employee is informed by a physician  that
he  may  be permanently precluded from returning to work  at  the
time  of  the injury.  Gillen, supra, at *2.  The board  reversed
this   legal  conclusion,  in  keeping  with  its  pre-regulation
decisions  that  the  90-day time period  under  AS  23.30.041(c)
begins  to run when the employee knew, or should have known,  the
injury  may  permanently  preclude  him  from  returning  to  his
occupation at the time of injury.  Id. at *5.
          Jerry,  supra,  is  another post-regulation  case.   In
Jerry the notice of injury seems to have been given shortly after
the  injury  itself,  which occurred on  August  11,  2000.   The
employee requested an evaluation on December 27, 2002.   The  RBA
held that this request was untimely because the ninety-day period
began  to  run  on March 30, 2001, when the employee  received  a
release to return to work that specifically limited the employees
capacities.  The board affirmed the RBAs decision, noting  as  in
previous  decisions, that the 90-day period begins to  toll  when
the  employee knew or should have known that he may be  precluded
from  returning to his occupation at time of injury.  Id. at  *5,
6.

     11   The RBA acknowledged the boards prior decisions but did
not  agree  with them or believe that he was bound by  them.   He
wrote:
               Alaska Statute 23.30.041(c) directs that
          the   injured   worker   shall   request   an
          evaluation  within 90 days after  the  worker
          has  given  his/her employer  notice  of  the
          injury.  If the employee lacked the requisite
          knowledge within this time period,  then  the
          Alaska  Workers Compensation Board has  ruled
          that  the employee must request an evaluation
          no later than 90 days after the employee knew
          or  should have known that they might not  be
          able to return to the work they were doing at
          the time of injury.
Similarly,  Burkes attorney acknowledged in his brief before  the
board that
          [n]umerous  Board  cases  have  adopted  that
          principle    [retriggering   the   ninety-day
          limitations period] both in situations  where
          the  claimant did not make the request within
          90 days (without actual notice of any doctors
          opinion within the 90 days) and in cases when
          the  request  was made outside the  90  [day]
          period  (where  the notice was given  outside
          the  90  day window but the request was  made
          more than 90 days after that date).
          Judge Bolger also noted, when this case was appealed to
the  superior  court,  that the RBAs interpretation  ignores  the
Boards  longstanding interpretation of the statute.  Judge Bolger
concluded  that the Board has applied a consistent interpretation
of the statute and regulation, which requires an employee to make
an application within 90 days after the extenuating circumstances
have resolved.

     12   Regulations are invalid if they are not consistent with
the  purposes  of  the statute under which they are  promulgated.
See  Board  of Trade, Inc. v. State, Dept of Labor, Wage  &  Hour
Admin., 968 P.2d 86, 89 (Alaska 1998).

     13    The board noted that the RBAs interpretation would not
serve  the  legislatures goal of encouraging early rehabilitation
intervention.  The board further wrote:
          [T]he   RBAs   application  of   the   90-day
          requirement   does  not  comport   with   the
          Legislatures intent that benefits be provided
          in  a  manner that is quick, efficient,  fair
          and  predictable  . . .  .   Under  the  RBAs
          interpretation,  an  employee  could  request
          reemployment  benefits  years,  or   decades,
          after   being   advised  of  the   need   for
          retraining.   We find that interpretation  to
          be    neither    quick,   efficient,    fair,
          predictable, or reasonable to employers.
(Citations omitted.)
          The legislative history of the ninety-day limit set  by
AS 23.30.041(c) indicates that it was the product of considerable
deliberation.   The  initial  bill  set  a  sixty-day  limit  but
advocates of workers testified that sixty days would be too early
in  many  cases.  See Senate Bill (S.B.) 322,  6, 15th  Leg.,  2d
Sess.  (Jan. 11, 1988) (imposing sixty-day requirement);  Meeting
of  the Joint Senate and House Labor and Commerce Committee, 15th
Leg., 2d Sess. (Jan. 29, 1988) (testimony of Joe Kalamarides  and
Steve  Montooth).  A representative of vocational  rehabilitation
counselors   testified   that   workers   need   to   start   the
rehabilitation  process as early as possible and  advocated  that
referral for evaluation be mandatory at ninety days post  injury.
Meeting  of  the  Joint  Senate  and  House  Labor  and  Commerce
Committee,  15th  Leg., 2d Sess. (Feb. 12,  1988)  (testimony  of
Dennis Johnson, President, Alaska Chapter of National Association
of  Rehabilitation  Professionals in the  Private  Sector).   The
limit  was  changed  to  ninety  days  in  recognition  of  these
concerns.   The  courts view in this case that a delay  of  about
three  months  that is ninety days plus about three  more  months
is  certainly not an unreasonable amount of time given the length
of  time that had passed (and therefore the filing was timely) is
inconsistent  with  the  legislative judgment  reflected  by  the
ninety-day deadline and this history.  See Slip Op. at 34.

14   Slip Op. at 31-36.

     15   AS 44.62.  See Slip Op. at 31 et seq.

     16   Slip Op. at 31 (referring to language in the appellants
brief at page 44).

     17    Burke  makes  this  clear in  the  following  language
appearing  later  in  the same paragraph as that  quoted  by  the
court:  The legislature could have included such a discovery rule
in  the Act.  The lack of it is evidence the legislature did  not
want  it  under the principle of statutory construction expressio
unius  est  exclusio[]  alterius.   Burke  then  makes  the  same
argument  with respect to the intent of the board in promulgating
the  extenuating  circumstances regulation:   Had  the  executive
branch  (i.e., the board), in its rule-making process, wanted  to
create  a  discovery rule in the regulation it,  arguendo,  could
have done so.  It did not even though the current regulation  was
adopted  in 1998.  That proves that the executive branch did  not
want it either.

     18    This  court will ordinarily not consider  issues  that
have  not  been  argued in the superior court and in  the  briefs
before  this  court.  Vest v. First Natl Bank of  Fairbanks,  659
P.2d 1233, 1234 n.2 (Alaska 1983), modified on rehg, 670 P.2d 707
(Alaska  1983).  There are two exceptions to this rule.   One  is
where  an error has been made that can be said to be plain  error
and  the other is where there is an issue of law that is critical
to  a  proper  and  just decision.  The practice  concerning  the
critical-question-of-law exception is that the question will  not
be considered until the parties have had the opportunity to brief
the  issue.   See id.; see also, e.g., Cragle v. Gray,  206  P.3d
446,  448-49 (Alaska 2009); Smith v. Kofstad, 206 P.3d  441,  444
(Alaska  2009).  As this case stands, neither of these exceptions
applies.   Plain  error requires an obvious  mistake,  Miller  v.
Sears,  636  P.2d 1183, 1189 (Alaska 1981), and for  the  reasons
discussed  in  the  text in the paragraphs  that  follow,  it  is
anything but obvious that the board was precluded from making its
adjudicative  ruling  by the APA.  If it were  thought  that  the
critical-question-of-law  exception  applied,  the  court  should
notify  the parties that the question may be critical  and  offer
them the opportunity to brief it.

     19   145 P.3d 561, 572-73 (Alaska 2006).

     20   Id. at 573 (emphasis added).

     21   Slip Op. at 33.

     22   See supra note 3 and accompanying text.

     23   See supra notes 10 and 11 and accompanying text.

     24   See supra note 10.

     25   Alyeska Pipeline Serv. Co., 145 P.3d at 573.

     26    Foreseeability for purposes of the test  expressed  in
Alyeska Pipeline should rest on objective factors rather than the
assumed  subjective  conclusions of an individual  lawyer  and  a
rehabilitation specialist.  See, by contrast, Slip Op. at 34, 35.
The  objective  measure of the foreseeability of a  board  ruling
depends  on  the  nature  of  prior board  rulings,  prior  court
rulings,  and any relevant intervening circumstances.   By  these
measures  the  foreseeability of the boards ruling in  this  case
cannot  reasonably  be doubted.  As todays opinion  acknowledges,
the  board  had developed through adjudication a Part B discovery
rule  interpreting  AS  23.30.041(c) to require  an  employee  to
request  an  evaluation within 90 days of the date  the  employee
knew or should have known that he might not be able to return  to
the  occupation  at the time of injury.  Slip  Op.  at  29.   Our
rulings  in  analogous  discovery  rule  cases  were  in  accord.
Nothing  in  the  regulations suggested  that  the  boards  prior
rulings  would not continue to stand, and the board  twice  ruled
after the regulations were promulgated but before its decision in
the present case that the prior rulings would be followed.

     27   Alyeska Pipeline Serv. Co., 145 P.3d at 573.

     28   Id.

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