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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Monzulla v. Voorhees Concrete Cutting (6/24/2011) sp-6570

Monzulla v. Voorhees Concrete Cutting (6/24/2011) sp-6570, 254 P3d 341

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

KENNETH MONZULLA,                               ) 
                                                )       Supreme Court No. S-13640 
                   Appellant,                   ) 
                                                )       Alaska Workers' Compensation 
        v.                                      )       Appeals Commission No. 08-032 
                                                ) 
VOORHEES CONCRETE                               )        O P I N I O N 
CUTTING and ALASKA NATIONAL)			) 
INSURANCE COMPANY,                              )       No. 6570 - June 24, 2011 
                                                )
 						)
                   Appellees.                   )
 						)
                                                )
 

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

                Appearances:        James M. Hackett, Law Office of James M. 
                Hackett,   Fairbanks,   for   Appellant.     Richard   L.   Wagg   and 
                Vicki   A.   Paddock,   Russell,   Wagg,   Gabbert   &   Budzinski, 
                P.C., Anchorage, for Appellees. 

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

                CARPENETI, Chief Justice. 

I.       INTRODUCTION 

                Does   the   Alaska   Workers'   Compensation   Appeals   Commission   have 

subject   matter   jurisdiction   to   review   interlocutory   orders   of   the   Alaska   Workers' 

Compensation Board before a final Board decision?                In 2006 the Commission decided 

that   it   had   implied   jurisdiction   to   hear   motions  for   extraordinary   review,   which   are 

----------------------- Page 2-----------------------

similar to petitions for review in the appellate courts.       In 2008 an employer asked the 

Commission to review and to stay the Board's non-final order denying a change of venue 

from Fairbanks.     The Commission first issued a partial stay, permitting the case to go 

forward in any venue other than Fairbanks.         It later reviewed the merits of the Board's 

decision to deny the change of venue and reversed it.         The employee contends that the 

Commission did not have subject matter jurisdiction over motions for extraordinary 

review because the legislature only granted the Commission jurisdiction to hear appeals 

of final Board orders.  Because we find that jurisdiction to hear interlocutory appeals is 

necessarily incident to the Commission's express power to hear appeals from final Board 

decisions, we affirm the Commission's decision. 

II.     FACTS AND PROCEEDINGS 

               Kenneth   Monzulla   hurt   his   back   in   1999   when   he   was   working   for 

Voorhees Concrete Cutting in Fairbanks.   As the Board noted in one of its decisions in 

the case, "[t]he medical and legal records in this case are voluminous."            In September 

2001, the parties entered a partial compromise and release agreement to settle all issues 

except    future  medical    care  for  his  lumbar   and   thoracic   spine;  their  more   recent 

substantive disputes have involved the extent of this medical care. 

               The parties have also disagreed about venue for the proceedings.  Because 

Monzulla injured his back in Fairbanks, venue for Board proceedings related to his injury 
was initially in Fairbanks.1     Monzulla moved to the Kenai Peninsula in 2002, and his 

treating physician at the time of the Board proceeding was in Soldotna.  Voorhees twice 

asked the Board to change venue from Fairbanks to Anchorage, arguing that it would be 

less costly and time consuming to have hearings in Anchorage. Monzulla, appearing pro 

        1      8 Alaska Administrative Code (AAC) 45.072 (2011) (setting venue in "the 

city nearest the place where the injury occurred" unless circumstances justify change of 
venue). 

                                                -2-                                            6570 

----------------------- Page 3-----------------------

se, opposed Voorhees's requests to change venue because the Fairbanks office was 

already familiar with his case. 

               Voorhees's first petition for a change of venue was filed in November 2006. 

After a hearing, the Board denied the petition, finding that "Fairbanks [would] better 

serve the balanced interests of the parties, witnesses, and the [Board], and would provide 

a speedier remedy."      The Board held a hearing on March 1, 2007, on various claims 

raised by Monzulla; in its decision, it granted some claims and denied others.  Voorhees 

appealed the Board's final decision to the Commission and at the same time appealed the 

interlocutory order denying its petition for change of venue.         On February 4, 2008, the 

Commission affirmed in part and reversed in part the Board's orders. On the venue issue, 

the Commission affirmed the Board's denial of a change of venue with a cautionary 

instruction to the Board not to consider its own interest when evaluating a change of 

venue request. 

               On July 16, 2008, Voorhees again petitioned the Board to change venue; 

the Board again denied the petition.       Voorhees filed a motion for extraordinary review 

and   request   for   stay   with   the   Commission   on   October   24,   2008. The   Commission 

granted extraordinary review of the venue question, stayed the Board proceedings "in the 

northern venue, but not proceedings in other venues," and invited the participation of the 

director of the Division of Workers' Compensation because of the question's potential 
impact on Board procedure.2         Monzulla filed a letter with the Commission, which it 

construed as a motion for reconsideration of its grant of extraordinary review.                The 

Commission denied reconsideration. 

        2      The    director   filed  a  Notice  of  Limited   Intervention    for  Purposes    of 

Supplementing the Record with an attached affidavit on January 12, 2009, but did not 
participate further. 

                                                -3-                                            6570 

----------------------- Page 4-----------------------

                In its decision on the merits, the Commission decided that the Board had 

abused its discretion in failing to change venue to Anchorage "because it relied on an 

impermissible consideration, its own interest, under 8 [Alaska Administrative Code] 

45.072(2) and because it lacked sufficient evidence to find that Fairbanks was a more 

convenient forum than Anchorage for the parties and witnesses." 

                After the Commission reversed the Board's venue decision, an attorney 

entered an appearance on behalf of Monzulla and moved for reconsideration of the 

Commission's decision.        He argued that the Commission did not have subject matter 

jurisdiction to consider the motion for extraordinary review and had misconstrued the 

case law in its discussion of the law of the case doctrine.  The Commission declined to 

consider Monzulla's challenge to its subject matter jurisdiction because he had not raised 

it previously in the appeal and had not distinguished Commission precedent on the 

subject.   But it ordered briefing on whether it had misconstrued our case law.  Monzulla 

filed an appeal in this court related to the Commission's subject matter jurisdiction on 

October 2, 2009. On October 8, 2009, the parties filed a stipulation with the Commission 

dismissing   Monzulla's   motion   for   reconsideration;   the   Commission   issued   an   order 

dismissing the motion for reconsideration and indicating that its decision dated August 

6,   2009,   was   the   final   decision   of   the  appeals   commission. Monzulla   appeals   the 

Commission's exercise of jurisdiction over the motion for extraordinary review and its 

partial stay of the Board's venue order. 

III.    STANDARD OF REVIEW 

                In   an   appeal    from    the   Alaska    Workers'     Compensation       Appeals 
Commission, we review the Commission's decision rather than the Board's decision.3 

We apply our independent judgment to questions of law that do not involve agency 

        3       Barrington v. Alaska Comm'ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska 

2008). 

                                                 -4-                                             6570 

----------------------- Page 5-----------------------

expertise.4   We   likewise   apply   our   independent   judgment   to   questions   of   statutory 

interpretation.5 

IV.     DISCUSSION 

        A.     Monzulla's Challenge To Subject Matter Jurisdiction Was Timely. 

               Monzulla contends that the Commission erred because it did not consider 

whether it had jurisdiction to hear interlocutory appeals.        He asserts that his "failure to 

object to the Commission's lack of subject matter jurisdiction [before reconsideration] 

is immaterial." 

               The Commission refused to consider Monzulla's challenge to its subject 

matter jurisdiction because he did not raise it until he moved for reconsideration of its 

decision on the merits and had not established "that there [were] grounds to distinguish 
or   overturn"  Eagle   Hardware   &   Garden   v.   Ammi.6      The   Commission   stated   that 

"AS 23.30.180(f) [did] not permit [Monzulla] to raise a legal issue for the first time on 

reconsideration, especially one that [was] not closely related to any points raised or 

decided in the appeal." 

        4       Id. 

        5      Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003). 

        6      AWCAC           Dec.     No.     003     (Feb.    21,    2006),     available      at 

http://labor.state.ak.us/WCcomm/orders.htm.  In Ammi, the Commission decided that it 
had implied jurisdiction to review interlocutory Board orders before a final decision of 
the Board.  Id. at 8-9. 

                                                -5-                                           6570
 

----------------------- Page 6-----------------------

                The question of subject matter jurisdiction can be raised at any time,7 and 

a court can raise the issue of its subject matter jurisdiction sua sponte.8   Therefore, we 

conclude that Monzulla's challenge was not untimely.9              But any error was harmless, as 

set out below in Part IV.C. 

        B.	     The     Legislature     Did    Not   Explicitly    Grant     Interlocutory      Review 
                Jurisdiction To The Commission. 

                Monzulla's       appeal   raises  the   question    whether    the  Commission       has 

jurisdiction to review interlocutory Board orders before the Board issues a final decision. 

He   argues,   based   on   the   statutory   language,   that   the   legislature   did   not   grant   the 

Commission this power.         Monzulla contends that the legislature "was aware of how to 

fashion     broad    extraordinary      discretionary    review     power    when     it  enacted    the 

Commission's statutory powers and authority" but chose to limit the Commission's 

jurisdiction to review of final decisions.         Because the legislature in AS 23.30.007(a) 
limited the Commission's jurisdiction to administrative appeals,10 Monzulla insists that 

        7       Nw. Med. Imaging, Inc. v. State, Dep't of Revenue, 151 P.3d 434, 438 n.5 

(Alaska 2006) (citing Hydaburg Coop. Ass'n v. Hydaburg Fisheries, 925 P.2d 246, 248 
(Alaska 1996)) (noting that challenge to agency jurisdiction was raised during second 
appeal to superior court). 

        8       See Hydaburg Coop. Ass'n, 925 P.2d at 248 (quotingBurrell v. Burrell, 696 

P.2d 157, 162 (Alaska 1984)) (noting that subject matter jurisdiction must be raised by 
the court if noticed and not raised by one of the parties). 

        9       To the extent the Commission implied that Monzulla had to raise a subject 

matter jurisdiction challenge at a specific time, it erred. 

        10      AS 23.30.007(a) provides, in relevant part: 

                        The commission has jurisdiction to hear appeals from 
                final decisions and orders of the board under this chapter. 
                Jurisdiction of the commission is limited to administrative 
                                                                                        (continued...) 

                                                  -6-	                                              6570 

----------------------- Page 7-----------------------

the legislature did not intend to give the Commission power to review non-final Board 

decisions. 

                 Voorhees responds that the legislature directly granted jurisdiction over 

interlocutory appeals to the Commission.               Voorhees asks us to interpret the statute, 
particularly     AS    23.30.125(b)11     and   AS    23.30.128(b),12     as  giving    the  Commission 

authority   to   hear   motions   for   extraordinary   review.       According   to   Voorhees,   these 

statutory     sections    are  meaningless      unless    construed     as  granting    the   Commission 

interlocutory appellate jurisdiction. 

                 We interpret a statute "according to reason, practicality, and common sense, 

taking into account the plain meaning and purpose of the law as well as the intent of the 

        10	      (...continued) 

                 appeals arising under this chapter. 

        11	      AS 23.30.125(b) states: 

                         Notwithstanding other provisions of law, a decision or 
                 order of the board is subject to review by the commission as 
                 provided in this chapter. 

        12	      AS 23.30.128(b) states: 

                         The   commission   may   review   discretionary   actions, 
                 findings   of   fact,   and   conclusions   of   law   by   the   board   in 
                 hearing, determining, or otherwise acting on a compensation 
                 claim     or  petition.    The     board's    findings    regarding     the 
                 credibility   of   testimony   of   a   witness   before   the   board   are 
                 binding   on   the   commission.      The   board's   findings   of  fact 
                 shall be upheld by the commission if supported by substantial 
                 evidence in light of the whole record. In reviewing questions 
                 of   law   and   procedure,   the   commission   shall   exercise   its 
                 independent judgment. 

                                                    -7-	                                              6570
 

----------------------- Page 8-----------------------

drafters."13  Our goal in interpreting a statute is "to give effect to the legislature's intent, 

with   due   regard   for   the   meaning   the   statutory   language   conveys   to   others."14  We 

construe a statute "in light of its purpose."15 

                In construing a statute, we look at the meaning of the words used and the 
legislative history.16     "[W]e   will   presume   'that   the   legislature   intended   every   word, 

sentence, or provision of a statute to have some purpose, force, and effect, and that no 
words or provisions are superfluous.' "17         All sections of a statute should "be construed 

together so that all have meaning and no section conflicts with another."18 

                As noted, Voorhees argues that in AS 23.30.125(b) and AS 23.30.128(b) 

the legislature specifically granted the Commission jurisdiction to review interlocutory 

orders.   According to Voorhees, these statutory subsections are meaningless unless they 

grant the Commission discretionary review jurisdiction.  Voorhees contends that if they 

are   not   interpreted   this   way,   they   would   be   in   conflict   with   AS   23.30.007(a)   and 

AS 23.30.008(a). 

        13      Grimm v. Wagoner, 77 P.3d 423, 427 (quotingNative Vill. of Elim v. State, 

990 P.2d 1, 5 (Alaska 1999)). 

        14      Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787 (Alaska 1996) 

(quoting  Tesoro Alaska Petroleum, Inc. v. Kenai Pipe Line Co., 746 P.2d 896, 905 
(Alaska 1987)). 

        15      Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 117 (Alaska 

1992) (citing Vail v. Coffman Eng'rs, Inc., 778 P.2d 211 (Alaska 1989)). 

        16      Alaskans for a Common Language v. Kritz, 170 P.3d 183, 192 (Alaska 

2007) (citing State v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982)). 

        17      Mech. Contractors of Alaska, Inc. v. State, Dep't of Pub. Safety, 91 P.3d 

240, 248 (Alaska 2004) (quoting Kodiak Island Borough v. Exxon Corp., 991 P.2d 757, 
761 (Alaska 1999)). 

        18      In re Hutchinson's Estate, 577 P.2d 1074, 1075 (Alaska 1978). 

                                                  -8-                                             6570
 

----------------------- Page 9-----------------------

                 The parties agree that "all sections of an act are to be construed together so 
that all have meaning and no section conflicts with another."19  Voorhees contends that 

the    statutory    subsections     at  issue    here   -    AS    23.30.007(a),      AS    23.30.008(a), 

AS 23.30.125(b), and AS 23.30.128(b) - cannot be construed together unless they are 

read   as   a   direct   grant   of   interlocutory   review   jurisdiction   to   the   Commission.   We 

disagree. 

                 The statutory subsections at issue here can be harmonized.  Alaska Statute 

23.30.007(a) is the express grant of jurisdiction to the Commission; its jurisdiction is 

"limited   to   administrative   appeals."       Alaska   Statute   23.30.008(a)   provides   that   the 

Commission's decisions are final and conclusive and have the force of precedent for the 

Commission and the Board; it expressly limits the Commission's jurisdiction to workers' 

compensation cases. Alaska Statute 23.30.125(b) clarifies that review of Board decisions 

is done by the Commission, not the superior court.  Alaska Statute 23.30.128(b) sets out 

the   Board   actions   the   Commission   can   review   and   the   standards   of   review   for   the 
Commission to apply.20          Thus, nothing in the statutory language explicitly gives the 

Commission jurisdiction over discretionary review of non-final Board decisions. 

        C.	      The   Commission   Has   Implied   Jurisdiction   To   Hear   Interlocutory 
                 Appeals. 

                 We next consider whether the Commission has implied jurisdiction to hear 

interlocutory appeals.   We have previously held that the Board has implied powers.                      In 

Wausau Insurance Cos. v. Van Biene we decided that the Board had implied jurisdiction 

        19	     Id. 

        20       Because      we   agree   with   Monzulla      that  the  statutory    sections   can   be 

harmonized, we do not need to consider whether one section is more specific. Nat'l Bank 
of Alaska v. State, Dep't of Revenue, 642 P.2d 811, 817-18 (Alaska 1982) (quoting State, 
Dep't of Highways v. Green, 586 P.2d 595, 602 (Alaska 1978)). 

                                                    -9-	                                             6570
 

----------------------- Page 10-----------------------

to apply equitable principles, such as estoppel, in workers' compensation proceedings.21 

And we decided that the Board had implied jurisdiction to set aside a compromise and 
release   agreement   because   of   fraud   in  Blanas   v.   Brower.22       In   both   instances   we 

determined   that   the   implied   power   was   necessarily   incident   to   the   Board's   express 

          23 
powers. 

                In deciding whether an administrative agency has properly exercised an 

implied power, other courts have considered whether the implied power is consistent 
with the legislature's objectives in granting powers to the administrative agency,24 the 

nature of the administrative proceeding,25 and "whether the circumstances, in relation to 

the   type   of   proceeding,   require   the   agency   to   exercise   its   implied   and   incidental 
powers."26 

                Applying these principles here, we hold that the Commission has implied 

jurisdiction to review interlocutory Board orders.  The Commission "performs a quasi- 
judicial function that is akin to appellate review."27           In some circumstances, delay of 

review until a final decision on the merits can make review pointless.  This case is one 

        21       847 P.2d 584, 588 (Alaska 1993).
 

        22       938 P.2d 1056, 1061-62 (Alaska 1997).
 

        23      Id.; Van Biene, 847 P.2d at 588.
 

        24       Unite Here! Local 5 v. City & Cnty. of Honolulu, 231 P.3d 423, 449 (Haw.
 

2010). 

        25      Hawes v. Colo. Div. of Ins., 65 P.3d 1008, 1017-18 (Colo. 2003) (en banc) 

(holding that the legislature had established a type of cy pres proceeding so that Division 
of Insurance had implied authority to award common fund attorney's fees). 

        26      Id. 

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

                                                  -10-                                               6570 

----------------------- Page 11-----------------------

example:     Review   of   an   improper   refusal to   change   venue   is   pointless   after   a   final 

decision on the merits when there may be no further proceedings. Similarly, if the Board 

improperly required an employee to undergo apsychiatric examination, a delay in review 
could subject the employee to an intrusive and unnecessary examination.28  Discretionary 

appellate review of non-final orders may at times be necessary to ensure fundamental 

fairness to the parties. 

                The goal of the statutory amendment that established the Commission was 

"to increase the efficiency and flexibility of the current system . . . and reduce some of 
its costs."29  The legislation eliminated superior court review of workers' compensation 

cases and substituted review by the Commission.30               Creation of the Commission was 

intended     "to  provide    'consistent,   legally   precedential    decisions    in  an  expeditious 
manner.' "31 

                 Discretionary review jurisdiction in the Commission can further all of these 

goals: increasing efficiency, providing precedential decisions from a body with expertise 

in   workers'   compensation,   and   reducing   costs   in   workers'   compensation   appeals. 

Discretionary review can speed the ultimate resolution of a case when review concerns 
a controlling legal issue.32    In this case, the ultimate decision on the merits may have been 

        28      Cf. BP Exploration Alaska, Inc. v. Stefano, AWCAC Dec. No. 76 (Alaska 

2008)   (denying   extraordinary   review   of  protective   order   preventing   employer   from 
compelling employee to attend psychiatric medical evaluation). 

        29      2005 Senate Journal 465. 

        30      Alaska Pub. Interest Research Grp., 167 P.3d at 37, 40. 

        31      Id. at 39 (quoting 2005 Senate Journal 465). 

        32      Cf. Thurston v. Guys With Tools, Ltd., 217 P.3d 824, 825 (Alaska 2009) 

(granting review to ensure that proper legal standard was applied on remand). 

                                                  -11-                                            6570
 

----------------------- Page 12-----------------------

delayed,33 but we agree with Voorhees that the venue question was one which would 

evade meaningful review without interlocutory appellate jurisdiction. 

                We have already noted that, in creating the Commission, the legislature 

intended to replace review by the superior court with review by the Commission.                 We 

agree with Voorhees that the legislature wanted those seeking review of Board decisions 

to have the same procedural rights of review that they had in the superior court.               We 

recognize, as Monzulla argues, that the discretionary review previously available in the 
superior    court   has   a  different  origin34  than   the  Commission's      authority   to  hear 

interlocutory appeals, but nothing in the legislative history indicates that the legislature 

wanted employers or employees to have fewer rights of review before the Commission 

than    before   the  superior   court.  We     conclude    that  the  Commission      had  implied 
jurisdiction to grant discretionary review of the venue decision.35 

        D.      The Commission Had Authority To Stay The Board's Decision. 

                Monzulla argues separately that the Commission was without jurisdiction 

to   stay  the  Board's    decision   because    the  workers'   compensation      statute  and   the 

Commission's   regulations   only   permit   stays   of   "compensation   orders,"   which   are   a 

limited class of Board orders.  Voorhees does not address this argument separately. 

        33      The Board hearing in Fairbanks on the merits of the claim was scheduled 

for November 14, 2008.        The Commission issued its decision reversing the Board on 
August 6, 2009.   The Board issued its final decision and order on reconsideration in the 
case on December 7, 2010.  Monzulla v. Voorhees Concrete Cutting, AWCB Dec. No. 
 10-0200 (Dec. 7, 2010). 

        34      See AS 22.10.020(d); AS 23.30.129; Alaska R. App. P. 610. 

        35      Monzulla did not appeal the merits of the Commission's venue decision or 

its application of the law of the case doctrine to his case, so we express no opinion on 
these issues. 

                                                -12-                                           6570
 

----------------------- Page 13-----------------------

                The only provision of the Alaska Workers' Compensation Act related to 

stays by the Commission is AS 23.30.125(c), which states: 

                If a compensation order is not in accordance with law or fact, 
                the order may be suspended or set aside, in whole or in part, 
                through proceedings in the commission brought by a party in 
                interest against all other parties to the proceedings before the 
                board.     The payment of the amounts required by an award 
                may not be stayed pending a final decision in the proceeding 
                unless,   upon   application   for   a   stay,   the   commission,   on 
                hearing, after not less than three days' notice to the parties in 
                interest, allows the stay of payment in whole or in part, where 
                the    party   filing  the  application     would    otherwise     suffer 
                irreparable       damage.          Continuing        future    periodic 
                compensation payments may not be stayed without a showing 
                by the appellant of irreparable damage and the existence of 
                the   probability   of   the   merits   of   the   appeal   being   decided 
                adversely to the recipient of the compensation payments. The 
                order   of   the   commission   allowing   a   stay   must   contain   a 
                specific    finding,    based   upon    evidence    submitted     to  the 
                commission and identified by reference to the evidence, that 
                irreparable damage would result to the party applying for a 
                stay and specifying the nature of the damage. 

                Monzulla does not dispute that the legislature gave the Commission some 

power to stay Board decisions; he argues that because a compensation order refers only 
to a Board order denying a claim or making an award of compensation,36 the statute 

permits the Commission to stay only compensation orders, not other Board decisions. 

                Given the purposes of the legislation, we do not think that the legislature 

intended the Commission's power to issue stays to be confined to compensation orders. 

The statutory language does not expressly limit stays to compensation orders nor does 

it prohibit stays of other Board orders. The statute sets out the standards the Commission 

        36      AS 23.30.110(e). 

                                                  -13-                                               6570 

----------------------- Page 14-----------------------

must apply when a party seeks to stay a monetary award from the Board.37   Although 

"[t]here is a presumption that the same words used twice in the same act have the same 
meaning,"38 the legislature appears not to have distinguished compensation orders from 

other decisions in the legislation establishing the Commission. Alaska Statute 23.30.127, 

which sets out deadlines for appeals and cross-appeals to the Commission, uses the term 
"compensation order" when referring to the time for filing an appeal39 and "decision" 

when referring to the time for filing a cross-appeal.40 

                In   addition,   without   authority   to   stay   Board   decisions   while   review   is 

pending, the Commission's discretionary review jurisdiction would be meaningless.  If 

the Commission could not stay a Board order while it reviewed the order, issues could 

become moot while review was pending. 

V.      CONCLUSION 

                Because   discretionary   review   of   non-final   Board   orders   is   necessarily 

incident to the Commission's express power to hear appeals from final Board decisions, 

we AFFIRM the Commission's decision that it had jurisdiction to stay and review the 

Board's venue decision in this case. 

        37      AS 23.30.125(c). 

        38      Jonathan   v.   Doyon   Drilling,   Inc.,   890   P.2d   1121,   1123   (Alaska   1995) 

(quoting Kulawik v. ERA Jet Alaska, 820 P.2d 627, 634 (Alaska 1991)). 

        39      AS 23.30.127(a). 

        40      AS 23.30.127(c). 

                                                 -14-                                              6570 
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