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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Apone v. Fred Meyer, Inc. (3/19/2010) sp-6463

Apone v. Fred Meyer, Inc. (3/19/2010) sp-6463, 226 P3d 1021

     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

JAMES APONE, )
) Supreme Court No. S- 12748
Appellant, )
) Superior Court No. 3AN-05-4362 CI
v. )
)
FRED MEYER, INC., ) O P I N I O N
)
Appellee. ) No. 6463 - March 19, 2010
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Stephanie E. Joannides, Judge.

          Appearances:  James Apone, pro se, Anchorage.
          Erin  K.  Egan,  Russell,  Wagg,  Gabbert   &
          Budzinski, Anchorage, for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          An  attendant  at  a  self-service gas  station  sought
workers  compensation  benefits, alleging that  his  exposure  to
fumes  and  exhaust  at  work caused him  to  be  disabled.   His
employer  denied  the  compensability  of  the  claim.   After  a
hearing,  the Alaska Workers Compensation Board decided that  the
employee had not established his claim by a preponderance of  the
evidence  and denied it.  The superior court affirmed the  board.
Because  substantial evidence in the record supports  the  boards
findings and because the board did not commit legal error in  its
treatment  of  the  employees  experts,  we  affirm  the   boards
decision.
II.  FACTS AND PROCEEDINGS
          James  Apone worked at the self-service Fred Meyer  gas
station on Abbott Road in Anchorage beginning in early 2002.  His
duties  included assisting customers, cleaning the pumps and  any
spills  that occurred, operating the cash register, and  stocking
items  in  the  kiosk  near the pumps.  He  experienced  numerous
physical  symptoms, which he attributed to his work  environment.
Apone  left  work on December 22, 2002, because he was   ill;  he
felt  dizzy, short of breath, nauseous, and faint.  At  home,  he
had  chills and was short of breath; he testified that after many
hours he passed out.  He returned to work the next day, and after
a few hours, he felt the same symptoms he had experienced the day
before.  He was sick for the next few days.
          Apone  sought  medical care from Dr.  T.  Noah  Laufer,
M.D., on December 26, 2002.  Dr. Laufer noted that Apone had  had
a  very stressful last year1 but also stated that Apones symptoms
would  fit  with  fume or exhaust related symptoms.   Dr.  Laufer
asked  Apone to avoid exposure to fumes and exhaust at work until
it  [was]  clear what [had] caused his symptoms.  Apone  filed  a
report of injury with Fred Meyer on December 30, 2002.  That same
day,  Dr.  Laufer  told  Fred Meyer that Apone  needed  to  avoid
exposure  to  gas  fumes or exhaust.  Fred Meyer  paid  temporary
total disability (TTD) benefits to Apone for about four months.
          To assess Apones condition, Dr. Laufer first ordered  a
cardiac  stress  test,  which  was  essentially  normal.    Apone
apparently  told Dr. Laufer that he became short of breath,  with
wheezing  and coughing, after the stress test.  Dr. Laufer  noted
the possibility of reactive airway disease (asthma) and ordered a
methacholine challenge pulmonary function test.  The test  result
was mostly normal; there was slight evidence of airway reactivity
at the maximum concentration of methacholine.
          Beginning  in  February 2003 Apone consulted  with  Dr.
Richard Newman, a chiropractor.  Dr. Newman diagnosed Apone  with
an  intolerance  reaction to gasoline fumes as well  as  xiphoid-
sternal strain-inflamation syndrome2 and cellulitis.  Dr.  Newman
noted  that  even  though Apone had previously been  treated  for
chest pain and respiratory problems, Apone now also suffered from
nausea,  headache, and mental disorientation.  Dr.  Newman  began
treatment  that  included  musculo-skeletal,  electro-neural  and
herbal  approaches.  Apone was later seen by  Dr.  Jeanne  Bonar,
M.D.,  who  ordered thyroid tests; the results  were  essentially
normal,  although  one test showed that Apone  might  have  early
subacute  thyroiditis.   Dr.  Bonar referred  Apone  to  Dr.  Lee
Schlosstein,  M.D.,  a rheumatologist, who diagnosed  Apone  with
fibromyalgia   and  desaturation  with  activity   of   uncertain
significance.3
          In  March 2003 Dr. Brent Burton, M.D., a specialist  in
toxicology  and  occupational medicine,  conducted  an  employers
independent medical evaluation (EIME) for Fred Meyer.  Dr. Burton
concluded  that  Apone  did not have a work-related  injury.   He
attributed Apones symptoms to probable depression or anxiety with
somatic  complaints.  Fred Meyer filed a controversion notice  on
April  22,  2003, relying on Dr. Burtons report.   On  April  25,
2003,  Apone  filed a workers compensation claim requesting  TTD,
permanent partial impairment benefits, medical and transportation
          costs, penalties, and a second independent medical evaluation
(SIME).  Fred Meyer filed an answer denying Apones claim.
          The parties stipulated to an SIME.  Dr. Timothy Craven,
M.D.,  a  specialist  in  occupational  medicine,  was  the  SIME
physician.   Dr.  Craven examined Apone and  diagnosed  him  with
chronic   fatigue  syndrome  and  [p]ossible  somatic  complaints
related  to  psychiatric disorder.  Dr. Craven found no  evidence
that  work-related  exposure to gasoline or fumes  caused  Apones
symptoms.   He  also stated that Apones work did  not  aggravate,
accelerate,  or combine with a preexisting condition  to  produce
the need for medical treatment or the disability.
          Apone  continued  his treatment with  Dr.  Newman,  who
rated   Apone  as  having  a  thirty-five  percent  whole  person
impairment.   In September 2004 Dr. Newman noted that  Apone  had
failed  to  improve as expected over the previous several  months
and  recommended that Apone be referred to a facility that  dealt
exclusively with environmental illness.
          The parties attended a prehearing conference on October
14,  2004,  shortly before the hearing on Apones claim.   At  the
prehearing  conference,  Fred  Meyer  raised  concerns  that  the
diagnoses made by Dr. Newman were beyond his expertise, and Apone
asked  for a continuance to allow him to obtain an expert witness
on  toxic exposure.  The prehearing conference officer apparently
told Apone to raise the continuance issue at the beginning of the
hearing.
          The board held a hearing on Apones claim on October 19,
2004.   Apone  represented himself.  In  addition  to  testifying
himself, Apone called two witnesses, Pamela Miller, the executive
director  of  Alaska Community Action on Toxics; and Dr.  Newman.
Fred Meyers only witness was its EIME physician, Dr. Burton.
          Fred  Meyer objected to Millers testifying as an expert
in  the  case  and questioned her about her credentials.   Miller
testified that she was not a medical doctor, but that she  had  a
masters degree in environmental science and twenty-five years  of
experience  in  environmental health research and science.   Fred
Meyer  also made a general objection to the testimony  of  Apones
experts  based  on  State v. Coon.4  The board  admitted  Millers
expert  testimony with the qualification that she was not trained
in  diagnosis and had not examined Apone; it said that  it  would
take under advisement the weight it would give her testimony.
          Miller  testified about the effects of toxic  chemicals
in  gasoline,  particularly benzene,  on  human  health.   Miller
testified  that Apones symptoms in December 2002 were  consistent
with  exposure to benzene and other toxic substances in petroleum
products.   She  also stated that environmental  medical  studies
showed   a   correlation  between  chemical  exposure   and   the
development   of  fibromyalgia  and  chronic  fatigue   syndrome,
although  she  acknowledged  that  not  all  workers  exposed  to
chemicals  at  service stations get fibromyalgia.  She  testified
that  she had not been able to do any independent testing of  the
air  quality  at  the gas station because she was  subpoenaed  so
close  to the hearing time and faulted Fred Meyer for not  having
some  type  of  system in place to monitor the concentrations  of
fumes in the air.
          When  Apone  called Dr. Newman to testify,  Fred  Meyer
conducted  voir dire because it questioned Dr. Newmans expertise.
Dr.  Newman  testified that he had a degree from  a  chiropractic
college and was a diplomate in nutrition.  He stated that he  did
not  have any certification in toxicology and that less than  ten
percent  of  his  practice  dealt  with  patients  with  chemical
exposure problems.  Dr. Newman testified that he did not diagnose
a  toxicological condition in Apone but said that in his  opinion
environmental  agents had caused some stress and  disturbance  in
Apones  nervous  system.   Dr.  Newman  said  that  the  core  of
chiropractic  is  abnormality  and transmission  of  the  nervous
system, so that his evaluation and treatment of Apone was  within
the scope of chiropractic.  He also testified that he was able to
determine  that Apone had a specific reactivity to  environmental
toxins,  particularly to petrochemicals, but could not say  where
the  toxins  came from.  Dr. Newman indicated that he  could  not
entirely  exclude the possibility of a psychological  explanation
for Apones condition.
          Apone  testified about his prior work history  and  the
development of his symptoms.  He gave a history of his  treatment
with  different doctors and talked about the doctors  failure  to
test  his  blood  for exposure to toxins.  He  presented  general
information from books and the internet about chemical  exposure,
medical  mistakes,  fibromyalgia, and chronic  fatigue  syndrome.
Apone described his physical condition as like running a marathon
and  then  being  hit by a bus, with long-term  pain,  headaches,
muscle and joint aches, sore throat, and exhaustion.
          Dr.  Burton, Fred Meyers EIME physician, testified that
he  was  board certified in occupational medicine and toxicology.
He  indicated   that he had examined Apone as  well  as  reviewed
Apones medical records and laboratory results and had come to the
conclusion that Apones condition was not related to his  work  at
Fred  Meyer. During his examination of Apone, Dr. Burton  took  a
detailed  work  history  about  Apones  job  at  the  gas  kiosk.
According  to Dr. Burton, air testing was not needed to  evaluate
Apones exposure because of the work history Apone presented.  Dr.
Burton  testified that Apones lab results were essentially normal
and  that Apone had expressed symptoms of depression and  anxiety
along  with a variety of somatic complaints that [could]  not  be
explained  on  the  basis  of  objective  findings.   Dr.  Burton
concluded  that  the best explanation for Apones symptoms  was  a
diagnosis of depression with some anxiety.
          Dr. Burton took exception to Pamela Millers conclusions
about  any  link  between Apones illness and  his  work  because,
according to Dr. Burton, there was no consideration of  the  dose
response  relationship.   Dr.  Burton  also  disagreed  with  Dr.
Newmans conclusions, asserting that Dr. Newman was simply  making
an  association between Apones work and his illnesses based on  a
temporal relationship.
          In its November 2004 decision, the board concluded that
Apone  had  failed to establish a compensable claim.   The  board
used  its  three-step analysis to evaluate the claim.5  It  found
that Apone had attached the presumption of compensability through
Dr.  Newmans testimony and his reports.  It stated that the claim
          was based on highly technical medical considerations and that the
claimant ha[d] presented medical evidence necessary to make  that
connection.   It  then decided that Fred Meyer had  rebutted  the
presumption through Dr. Burtons testimony and report as  well  as
Dr.  Cravens  and Dr. Schlossteins reports.  Finally,  the  board
concluded  that Apone had not proven his claim by a preponderance
of  the evidence.  The board first decided that Millers testimony
could  not  be relied on to show any connection between  [Apones]
alleged exposure in the workplace and his current claimed medical
problems.  It discounted Dr. Newmans expertise, writing that  Dr.
Newman  did  not  have the requisite expertise  to  diagnose  the
employees condition and to formulate an opinion as to whether the
employees  condition is related to his alleged  exposure  in  the
workplace.   The  board decided to rely on  the  opinion  of  Dr.
Burton and disregard[] the opinions of Dr. Newman and Miller.  It
found that Apone had not met his burden of proof and rejected his
claim.
          Apone  appealed to the superior court.  In the superior
court,  Apone argued that neither the board nor his employer  had
given  him  adequate assistance in preparing and  presenting  his
case.   He  also  asserted that the board did not  recognize  his
expert witnesss statements regarding his claim and that it abused
its  discretion by not doing so.  He complained that  Fred  Meyer
had  failed to give him information about toxic substances he was
exposed  to  at  his job.  He argued that the board  should  have
awarded  him  compensation and questioned the  integrity  of  the
hearing process.
          The   superior  court  affirmed  the  boards  decision,
holding  that  substantial evidence in the record  supported  the
boards  decision  that Apone had not proven his claim.   Although
the  court  stated  that  it  would not  uphold  a  finding  that
chiropractors are per se unqualified to render a medical  opinion
or  that  Miller was not an expert, it concluded that  the  board
could properly give more weight to Dr. Burtons testimony than  to
the  testimony of Miller and Dr. Newman.  The court decided  that
it  was not error for the board to disregard Millers testimony on
the question whether Apone had suffered an injury as a result  of
exposure to gas or diesel fumes at his workplace or for the board
to  permit  Dr.  Burton  to  listen to  the  testimony  of  other
witnesses   before  answering  questions.   Finally,  the   court
rejected Apones contention that the board had the duty to  inform
him  that he needed to present evidence from a medical doctor and
determined that Apone had waived his argument that Fred Meyer was
required  to provide him with information either about his  claim
or about the environmental health of his workplace.         Apone
appeals.

III. STANDARD OF REVIEW
          In  a  workers  compensation appeal from  the  superior
court, we independently review and directly scrutinize 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  In deciding  whether  substantial
          evidence supports a finding, we do not  reweigh the evidence or
choose between competing inferences, but simply determine whether
such  evidence exists.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 the boards decisions about the admissibility
of evidence for 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.   The Board Properly Considered the Testimony of Apones Expert
          Witnesses.
          
          A.   Apone asserts that the board abused its discretion by not
recognizing Pamela Miller as an expert witness.  He contends that
even   though   she  had  the  most  knowledge   about   gasoline
exposures  .  .  .  in Alaska, the board totally  discounted  her
testimony.  Apone also argues that the board improperly evaluated
Dr.  Newmans  testimony  because Dr. Newman  presented  the  most
credible  evidence  relat[ed]  to  gasoline  exposure  and  [its]
relationship  to the work injury.  Fred Meyer responds  that  the
board  acted  within its authority in giving less weight  to  the
testimony of Apones experts.
          At  the  hearing, the board admitted Millers  testimony
with the qualification that she was not trained in diagnosis  and
had not seen Apone; the board permitted her to testify in general
about  the nature of toxics and their effects on people  and  the
environment.   In  its  final decision,  the  board  stated  that
because Miller was not a medical doctor, her testimony cannot  be
relied  on  by  the employee to show any connection  between  his
alleged exposure in the workplace and his current claimed medical
problems.
          We  disagree  with  Apones contention  that  the  board
failed  to  recognize Miller as an expert or that  it  improperly
considered  her  opinion.  Interpreting the  boards  decision  in
light  of  the whole record leads us to conclude that  the  board
recognized  Miller  as an expert but limited  the  scope  of  her
expert  testimony  to general information about  the  effects  of
toxins on people and the environment.  In order to succeed in  an
occupational  disease case, an employee must show  (1)  that  his
disease  was caused by the conditions of his employment; and  (2)
that  as  a result of those working conditions, the risk  of  his
contracting  the  disease was greater than that  which  generally
prevails in employment and living conditions.13  Apone needed  to
provide  other expert testimony to establish the work-relatedness
of  his disability and could not rely solely on Millers testimony
because  she  lacked the expertise to link his  exposure  to  his
illness.
          The  board  did  not qualify Miller  as  an  expert  in
diseases   or   medicine.    Miller   herself   disclaimed    any
certification in diagnosis and stated that her role in  the  case
was to review the scientific and medical literature, and based on
the  information that [she had] gained in the interview with  Mr.
Apone, try to summarize the toxicological effects that can  ensue
          from inhalation of fumes from gasoline and diesel fuel.
          In  spite  of the limitations that the board placed  on
Millers  expert testimony, she offered testimony  about  the  key
issue  in the case  whether Apones exposure at Fred Meyer  caused
an  occupational  disease  which was not an  opinion  within  the
scope  of her board-recognized expertise.  Miller testified  that
she  believe[d]  that  [Apone] suffered both  acute  and  chronic
health problems from his exposure to the toxic components of  the
fuels   and   that   she   believe[d]  [Apone]   should   receive
compensation,  medical support, as well as medical  surveillance.
She also testified that [Apones] chronic health problems seem  to
be  associated  with  his acute and repeated  exposure  over  the
months  that  he  was  employed at the fuel distribution  center.
Because  Miller was not qualified by the board to give an opinion
about  the compensability of Apones injury or about the  specific
health effects that Apone suffered as a result of his work at the
Fred  Meyer  gas  station,  the  board  properly  discounted  her
testimony.14
          Apones   contention   that  the   board   impermissibly
discounted  Dr.  Newmans  opinion also  fails.   The  opinion  or
testimony  of an employees treating physician is not entitled  to
greater  weight  than  that of an employers  physician.15   After
finding  that Apones claim was based on highly technical  medical
considerations, the board used Dr. Newmans testimony and  reports
to  attach  the  presumption of compensability.   From  this,  it
appears  the  board  determined  that,  considering  Dr.  Newmans
testimony  in  isolation,   he  had the  required  knowledge  and
experience to provide some support for Apones claim.  However, at
the  third  stage  of the presumption analysis,  when  the  board
weighed  the  evidence, it discounted Dr. Newmans  testimony   it
gave it little weight.  The board was free to give less weight to
Dr.  Newmans testimony.16  It was reasonable for the board to  do
so:   Dr. Newman testified that he did not have any certification
in  toxicology and that less than ten percent of his patients had
problems  resulting from toxic exposure.  Moreover,  even  though
Dr.  Newman  diagnosed  Apone  with  a  specific  reactivity   to
environmental  toxins, and particularly to  petrochemicals,   Dr.
Newman also testified that he could not say where the toxins  had
come from.17
          Although the boards written decision could be  read  to
suggest that the board did not recognize Miller or Dr. Newman  as
experts,  the  board permitted them both to testify  as  experts.
The  board simply gave little weight to their testimony  when  it
evaluated the evidence.
     B.   Substantial Evidence Supports the Boards Decision.
          As  we have already noted, the board applied its three-
step  presumption analysis to Apones claim.18   It  decided  that
Apone attached the presumption of compensability, that Fred Meyer
rebutted  it,  and  that  Apone had not proven  his  claim  by  a
preponderance of the evidence.  In determining that there was  no
connection  between Apones workplace exposure and his disability,
the board g[ave] weight to the opinion of Dr. Burton, Fred Meyers
EIME  physician, in part because of his superior credentials  and
expertise.
          Apone  argues  that  the board improperly  weighed  the
evidence in denying his claim.  Because the only evidence-related
basis  for a challenge to the boards decision is that it was  not
supported  by substantial evidence, we interpret Apones  argument
as  one  that the boards decision is not supported by substantial
evidence  in  the  record. According to Apone,  Miller  had  more
information  about gasoline exposures in Alaska than Fred  Meyers
expert,  and  Dr.  Newman  presented the most  credible  evidence
relating to gasoline exposure and [its] relationship to the  work
injury.   Fred Meyer responds that the board properly  relied  on
the  testimony of Dr. Burton, Dr. Craven, and Dr. Schlosstein  to
reject  Apones claim and that these reports comprise  substantial
evidence that supports the boards decision.
          Dr. Burtons testimony and the reports of Dr. Burton and
Dr.  Craven  provide substantial evidence for the boards  finding
that  Apone failed to establish a compensable claim.  Dr. Craven,
the  SIME  physician  and a specialist in occupational  medicine,
examined  Apone  and  reviewed his medical records.   Dr.  Craven
concluded  that there was no evidence for work place exposure  to
gasoline  or  diesel  fumes  causing his  symptoms.   Dr.  Burton
testified  that  there was no link between any of Apones  medical
problems and his work at Fred Meyer.  Dr. Burtons report reflects
a  thorough  evaluation of Apones symptoms, medical history,  and
medical  testing.  Dr. Burton was board certified  in  toxicology
and  occupational  medicine.  The boards finding  concerning  the
weight to be given to a medical report is conclusive.19  Here, it
was  reasonable  for  the board to rely on  Dr.  Burtons  opinion
rather  than  Dr.  Newmans because of Dr.  Burtons  training  and
practice in toxicology.20
          In sum, substantial evidence in the record supports the
boards finding that Apone did not establish a compensable claim.
     C.   The Board Provided Adequate Assistance to Apone.
          Quoting Richard v. Firemans Fund Insurance Co.,21 Apone
argues that the board did not fulfill its duty to him as a pro se
litigant,  but  it  is  difficult to discern  precisely  what  he
thought  the board needed to do to help him.  The superior  court
interpreted Apones brief in this regard as arguing that the board
should  have advised him that he needed to have a medical  doctor
testify as an expert.
          We  recently held that the boards duty to assist pro se
litigants  is  similar to the duty of a court.22   Here,  we  see
nothing  to indicate that the board failed in its duty to  assist
Apone.   Apone  filed  a  workers compensation  claim,  conducted
discovery,  and  presented expert testimony at his  hearing.   If
Apone  is  arguing that the board should have told  him  that  he
needed  a medical doctor to testify at his hearing or helped  him
secure  an expert witness, we agree with the superior court  that
this  type of decision is a strategy decision and beyond what  is
required of the board.  Medical testimony is not required in  all
workers  compensation cases,23 so a party must  make  a  strategy
decision about whether expert medical testimony is necessary.  As
we  stated  in  Kaiser v. Sakata, [a]dvising litigants  of  every
possible  outcome of every decision is beyond the  scope  of  the
courts obligation to the pro se litigant.24  Apone apparently knew
          that he needed some type of expert testimony to prove his claim:
he  asked  for a continuance at the October 14, 2004,  prehearing
conference  so  that  he could find an expert  witness  on  toxic
exposure.   The prehearing conference officer told him  to  raise
the  continuance  issue at the beginning of  the  board  hearing.
Instead,  Apone presented Miller as an expert in toxins  and  the
environment.
          Apone  also  asserts that the board did not  adequately
explain  the  types of benefits available to injured workers  and
suggests  that  the board should have given him more  information
about the discovery process, trial process, and deadlines or that
it  should have independently investigated his claim.  Nothing in
the  record shows that Apone had difficulties with any  of  these
issues  or, if he did, that he alerted the board to his need  for
assistance.25  He sent requests for production to Fred Meyer  and
presented and cross-examined witnesses at the board hearing.  His
written  workers compensation claim sought a variety of benefits,
and his claim was denied not because of the specific benefits  he
requested but because the board decided that he had not proven by
a  preponderance of the evidence that his injury was compensable.
Based  on  our  review  of the record, we  hold  that  the  board
fulfilled its obligation to assist Apone.
     D.   Apones Other Arguments Are Waived or Lack Merit.
          In his brief before us, Apone argues for the first time
that the board proceedings violated his constitutional rights  to
due  process and equal protection. Because he did not raise  this
argument  before the board or the superior court,  he has  waived
it.26   Apone  also  waived any argument about the  SIME  process
because he did not adequately brief this issue.27
          Apone raises an argument before us about spoliation  of
evidence,   which  appears to be related to his contention,  made
before  the  board  and  the  superior  court,  that  Fred  Meyer
destroyed  tapes  of  him getting sick at work  before  he  could
request  them in discovery.  In July 2004 Apone requested through
discovery copies of security tapes from the gas kiosk made  while
he  was  employed at Fred Meyer.  Fred Meyer responded  that  any
tapes  taken  during the time of Apones employment would  already
have   been  destroyed  because  the  tapes  were  not   retained
indefinitely.  Apone has not adequately briefed whether sanctions
for  spoliation  of  evidence can apply in a board  proceeding.28
This  failure is particularly telling where, as here,  the  board
has  a  regulation  governing discovery sanctions.  Given  Apones
failure to adequately brief the issue, we decline to reach it.29
          Finally,  Apone maintains that the hearing officer  was
biased against him.  We see no merit in this contention.  To show
hearing  officer bias, a party must demonstrate that the  hearing
officer had a predisposition to find against a party or that  the
hearing officer interfered with the orderly presentation  of  the
evidence.30   Apone  does  not point to anything  in  the  record
showing that the hearing officer interfered with the presentation
of  evidence  in  his  case or that she was predisposed  to  find
against  him.  Apone also claims that the prehearing and  hearing
officers  were openly [disparaging] and rude to him.  Our  review
of  the  record  gives  no indication that  the  hearing  officer
          interfered with the presentation of evidence, or that any
officers were disparaging to Apone.

V.   CONCLUSION
          For  the  reasons  stated above, we AFFIRM  the  boards
decision in all respects.
_______________________________
     1     Apones T-shirt business, which he had for many  years,
failed  in  2001.   Dr. Laufer had previously treated  Apone  for
depression  and referred him for psychiatric treatment  prior  to
the alleged injury at Fred Meyer.

     2     The  xiphoid is the cartilage at the lower end of  the
sternum.  Stedmans Medical Dictionary 1262, 1743 (25th ed. 1990).

     3     Desaturation is defined as [t]he act, or the result of
the  act,  of  making something less completely  saturated;  more
specifically,  the  percentage of total binding  sites  remaining
unfilled, e.g., when hemoglobin is 70% saturated with oxygen  and
nothing  else,  its  d[esaturation]  is  30%.   Stedmans  Medical
Dictionary 421 (25th ed. 1990).

     4    974 P.2d 386 (Alaska 1999).

     5     See  AT  &  T Alascom v. Orchitt, 161 P.3d 1232,  1240
(Alaska  2007)  (citing Bradbury v. Chugach Elec. Assn,  71  P.3d
901,  905-06  (Alaska 2003)) (summarizing three-step analysis  in
workers compensation cases).

     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 v. Alaska Constr. & Erectors,  948
P.2d 454, 456 (Alaska 1997)).

     9     Steffey v. Municipality of Anchorage, 1 P.3d 685,  689
(Alaska 2000) (quoting Thompson v. United Parcel Serv., 975  P.2d
684, 688 (Alaska 1999)).

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

     11     Municipality of Anchorage v. Devon, 124 P.3d 424, 429
(Alaska 2005) (citing DeYonge, 1 P.3d at 94).

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

     13     Delaney v. Alaska Airlines, 693 P.2d 859, 861 (Alaska
1985),  overruled  on  other grounds by Wade  v.  Anchorage  Sch.
Dist., 741 P.2d 634, 638-39 (Alaska 1987).

     14     See  Structural Pres. Sys., Inc. v. Petty,  927  A.2d
1069,  1078-79  (D.C.  Cir.  2007) (quoting  Gonzalez  v.  United
States,  697 A.2d 819, 826 (D.C. Cir. 1997) and citing 32  C.J.S.
Evidence   526  (1996)  and  4 Jack B. Weinstein  &  Margaret  A.
Berger,   Weinsteins  Federal  Evidence   702.04[6]  (Joseph   M.
McLaughlin  ed., 2d ed. 1997 & 2003 Supp.)) (noting  that  expert
qualified  in one field may not provide opinion beyond  scope  of
her  expertise).  See also Fueger v. Case Corp., 886 N.E.2d  102,
104  (Ind.  App. 2008) (holding that expert in one  field  cannot
offer  opinions  in  other fields absent a requisite  showing  of
competency  in  that other area); Graftenreed  v.  Seabaugh,  268
S.W.3d  905, 914 (Ark. App. 2007) (Experts may not offer opinions
that range too far outside their area of expertise.).

     15    Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 793
(Alaska  2007) (citing Safeway, Inc. v. Mackey, 965 P.2d  22,  29
(Alaska 1998)).

     16     AS  23.30.122.  See also Lindhag v.  State,  Dept  of
Natural  Res.,  123 P.3d 948, 953-54 (Alaska 2005) (holding  that
board   properly   relied  on  expert  with  more   training   in
environmental medicine).

     17    In a March 2003 letter, Dr. Newman wrote that he could
not  say whether Apones medical condition was due to work-related
exposure  to  chemicals  or  was an  eventuality  he  would  have
suffered anyway.

     18    See supra note 5 and accompanying text.

     19    AS 23.30.122.

     20     See Cowen v. Wal-Mart, 93 P.3d 420, 426 (Alaska 2004)
(noting that board reasonably discounted testimony of doctor with
limited experience).

     21    384 P.2d 445, 449 (Alaska 1963).

     22    Bohlmann v. Alaska Constr. & Engg, Inc., 205 P.3d 316,
320-21 (Alaska 2009).

     23     Veco,  Inc.  v. Wolfer, 693 P.2d 865, 870-71  (Alaska
1985).

     24    40 P.3d 800, 804 (Alaska 2002).

     25     See id. (holding that where pro se litigant does  not
inform court of his difficulties with discovery process, litigant
not  entitled to greater guidance from court regarding  mechanics
of that process).

     26     See  Wagner v. Stuckagain Heights, 926 P.2d 456,  459
(Alaska  1996).  For the same reason, Apone has also  waived  his
argument  that  Fred  Meyer  had a  duty  pursuant  to  3  Alaska
Administrative Code 26.100 to assist him and that it failed to do
so.

     27     Thoeni v. Consumer Elec. Servs., 151 P.3d 1249,  1257
(Alaska  2007)  (quoting Peterson v. Ek, 93  P.3d  458,  464  n.9
(Alaska 2004)).

     28    See Peterson, 93 P.3.d at 464 n.9.

     29    8 AAC 45.054(d).  Even were we to reach Apones claims,
he  would not prevail, for he has not shown the relevance of  the
destroyed evidence.  The tapes would at most have shown  that  he
became ill at work, but Fred Meyer did not dispute that fact,  as
it  paid  him TTD benefits for four months.  In dispute  was  the
cause  of his illness, and the tapes would shed no light  on  the
cause.

     30    AT & T Alascom v. Orchitt, 161 P.3d 1232, 1246 (Alaska
2007)  (citing Tachick Freight Lines v. Dept of Labor,  773  P.2d
451, 453 (Alaska 1989)).

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