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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rosales v. Icicle Seafoods, Inc. (9/6/2013) sp-6819

Rosales v. Icicle Seafoods, Inc. (9/6/2013) sp-6819

         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  



HUGO ROSALES,                                         )  

                                                      )        Supreme Court No. S-14855  

                           Appellant,                 )  

                                                      )       Alaska Workers' Compensation  

                                                      )       Appeals Commission No. 11-007  

                                                      )  

         v.                                           )                 O P I N I O N  

                                                      )  

ICICLE SEAFOODS, INC. and                             )       No. 6819 - September 6, 2013  

SEABRIGHT INSURANCE CO.,                              )  

                                                      )  

                           Appellees.                 )  

                                                      )  



                  Appeal  from  the  Alaska  Workers'  Compensation  Appeals  

                  Commission, Laurence Keyes, Commission Chair.  



                  Appearances:    Hugo  Rosales,  pro  se,  Somerton,  Arizona,  

                  Appellant.    Lanning  Trueb  and  Richard  Nielson,  Nielsen  

                  Shields, PLLC, Seattle, Washington, for Appellees.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                         

                  Bolger, Justices.  



                  BOLGER, Justice.  



I.       INTRODUCTION  



                  After suffering a work-related injury, a worker on a fish-processing vessel  

                                                                                      



filed both a workers' compensation claim and a maritime lawsuit; he was represented by  

                                                                                            



counsel  in  both  proceedings.    The  worker  and  his  employer  entered  into  a  global  


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

settlement of both cases.  The Alaska Workers' Compensation Board initially rejected  



                                                                                           

the settlement.  The employee later tried to withdraw from the settlement but changed his  



                                                                        

mind and, at a hearing, testified that he thought the settlement was in his best interests.  



The  Board  approved  the  settlement  after  this  hearing.    Several  months  later,  the  



                                                                               

employee asked the Board to set the agreement aside.  The Board denied the request, and  



the Alaska Workers' Compensation Appeals Commission affirmed the Board's decision.  



Because we find no error in the Commission's decision, we affirm it.  



II.       FACTS AND PROCEEDINGS  



                    In May 2007, shortly after Hugo Rosales began working for Icicle Seafoods  



on a fish-processing vessel in Bristol Bay, a tray of frozen fish weighing about 54 pounds  



                                                                           

fell from a cart he was pushing and hit him on the back of the head.  Rosales suffered a  



                                                                                                                         

cut on his head and reported losing consciousness. He received medical treatment on the  



                                                                            

ship and worked a few more days.  He was seen at the Dillingham hospital on May 16.  



                                                         

The doctor there diagnosed whiplash and a history of concussion, and limited Rosales  



                                                      

to light duty work for several days.  Rather than go back to the vessel Rosales returned  



                                                                                                  

to his home in Arizona for another medical opinion.  He later filed a report of injury with  



the Alaska Workers' Compensation Board.  



                    Upon his return to Arizona, Rosales sought medical care for persistent  



                                                        

headaches as well as neck pain.  The examining physician diagnosed a head injury; CT  



scans  of  Rosales's  head  and  neck  were  mostly  normal,  but  the  neck  scan  showed  



                                            

degenerative disk disease at C4-C5.  Rosales also reported foot pain in June 2007.  A  



                                                                    

number of months after the accident, Rosales began to report lower back pain, which he  



stated began at the time of the accident.  



                                                                                                

                    Rosales, appearing pro se, filed a written workers' compensation claim in  



                                              

late October 2007, after Icicle filed a controversion of some benefits.  He made claims  



                                                                                            

for  medical  and  transportation  costs,  penalty  and  interest,  and  unfair  or  frivolous  



                                                               2                                                         6819
  


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

                                                                                                        

controversion.  In response Icicle admitted a short period of temporary total disability  



(TTD) and some medical costs.  



                   An attorney entered an appearance before the Board on behalf of Rosales  



                                                                                             

in July 2008.  The attorney also filed a maritime case against Icicle in King County  



Superior  Court  in  Washington.    Shortly  before  trial  was  scheduled  to  begin  in  the  



                                                                           

maritime litigation, the parties attended a mediation and agreed to settle all of Rosales's  



claims in a global settlement agreement.  Under the terms of the agreement, Icicle paid  



Rosales $200,000 to settle all of his claims; of that amount, he received about $113,000,  



                                                               

with the rest going to attorney's fees and costs.  The vast majority of the settlement,  



including the attorney's fees, was related to the maritime case:  according to the terms  



of  the  Board  settlement,  Icicle  paid  Rosales  $195,000  when  the  documents  were  



executed  and  was  to  pay  him  an  additional  $5,000  after  the  Board  approved  the  



settlement.  As part of the workers' compensation settlement, Rosales waived both future  



medical benefits and reemployment benefits.  



                                                                                                     

                   Not long after the settlement was submitted to the Board, and before it was  



                                                            

approved, Rosales, acting pro se, filed a written workers' compensation claim seeking  



benefits.  The claim was accompanied by a letter saying new evidence showed he was  



not medically stable.  Rosales's attorney later withdrew this claim.  



                   After reviewing the settlement, the Board rejected it because the Board  



                                                    

could not determine whether it was in Rosales's best interests.  In particular, the Board  



                                                                                                     

pointed out that Rosales was waiving medical benefits even though he appeared to have  



                                                                                                 

"work-related foot problems."  The Board requested a copy of the maritime settlement  



                                                   

and invited the parties to schedule a hearing about the workers' compensation settlement.  



                                                                              

In early January 2010, Rosales's attorney submitted a copy of the release of claims from  



the maritime case.  



                                                             3                                                       6819
  


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

                    The first board hearing on the settlement took place on February 2, 2010.  



                                                                             

When asked about medical care, Rosales testified that he saw the doctor once a month  



                                                                 

for follow-up and to get prescriptions.  In the course of the hearing, Rosales asked for  



more time to consider the settlement; the Board granted this request.  Following the  



                                  

hearing, Icicle sent a letter to Rosales's attorney claiming that Rosales was in breach of  



                        

the  agreement  because  he  was  not  cooperating  in  getting  Board  approval.    Icicle  



requested return of the $195,000 it had already paid or "an affirmative statement from  



                            

Mr. Rosales that he does want the Board to approve the settlement."  Icicle told the  



attorney that if it did not receive either the statement or the money by February 7, it  



would "take legal steps to protect its interest in the $195,000 paid to date."  



                    The Board held a second hearing on the settlement on February 23, 2010.  



                                                        

At this hearing Rosales testified that he wanted the Board to approve the settlement; that  



                                                      

he understood he would not receive any more workers' compensation benefits, including  



                                             

future medical benefits; and that he understood it was "virtually impossible" to set the  



                                   

agreement aside.  He  further testified that he thought the settlement was in his best  



                                                                

interests because he was getting enough money to pay for his medical treatment and  



                  

retraining.  The Board found the settlement was in Rosales's best interests and approved  



it.  



                                                                                                                               

                    On October 4, 2010, Rosales asked the Board to modify the settlement.  He  



            

sought a variety of benefits including permanent partial impairment (PPI) and temporary  



                                                                                  

total disability (TTD).  To support the modification request, Rosales alleged that the  



Board had incomplete medical information because not all of his medical records had  

                                            1   Additional reasons he gave for modifying the settlement  

                                                                                              

been submitted to the Board.  



          1         Rosales alleged that neither his attorney nor Icicle's had submitted reports
  

                                                                                  

from Kent Shafer, a vocational expert; Arthur Ginsberg, M.D.; and Theodore Becker,
  

                                                                                                               (continued...)
  



                                                                 4                                                             6819  


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

                                                                                                                                          

were that (1) he had not been evaluated for PPI; (2) the Board had not approved the  



                                                                           

attorney's fees paid to his attorney; (3) the employer had failed to pay him a penalty or  



                                                               

interest for the TTD it paid late; and (4) he had been required to work after the injury  



                                                                                                                                                    

because the employer was "short of workers," not because he was well or able to work.  



Icicle opposed modification.  



                                                               

                         Rosales then filed a written claim for permanent total disability (PTD) from  



                                                                                                                                        

the date of injury. Relying on the settlement agreement, Icicle denied the PTD claim and  



petitioned  the  Board  to  dismiss  Rosales's  modification  request.    During  several  



prehearing  conferences,  the  Board  gave  Rosales  information  about  the  difficulty  of  



overturning a settlement.  It then scheduled a hearing to consider his claim.  



                         After the hearing the Board decided there was no basis on which to set  



aside the settlement.  The Board found that most of the medical records Rosales alleged  



                                                                                                                                     

were missing were in fact in the file and had been in the possession of his attorney, not  



                                2  

Icicle's attorney.   It found that there had been no misrepresentation or duress.  The  



Board  found  that  Rosales  was  "not  credible  in  his  assertions  he  was  not  properly  



                               

informed about the settlement or the benefits he was waiving, and he felt coerced or  



under  duress  when  he  testified  to  the  board  he  wanted  the  workers'  compensation  



settlement approved."  



                         Rosales first asked for reconsideration, but the Board considered his request  



untimely.    Rosales  then  appealed  to  the  Alaska  Workers'  Compensation  Appeals  



             1           (...continued)  



Ph.D. to the Board.  



             2           Most of the records Rosales identified as missing were reports from experts     



his  attorney  had  retained  in  the  maritime  litigation;  they  included  both  medical  and  

vocational  reports.    Besides   the  records  mentioned  in  his  request  for  modification,  

Rosales additionally argued that records from another doctor (Dr. Feldman) and from his     

foot surgery were not submitted to the Board before the settlement was approved.  



                                                                                5                                                                        6819
  


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

Commission, which decided that substantial evidence in the record supported the Board's  



decision.  Rosales appeals.  



III.     DISCUSSION  



         A.       Standard Of Review  

                  In a workers' compensation appeal, we review the Commission's decision.3  



                                                                                           

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

             4  We independently review the Commission's legal conclusion that substantial  

expertise.                                                                                        



evidence  in  the  record  supports  the  Board's  factual  findings,  which  requires  us  to  



                                                             5  

                                                                "The Board is required to make findings  

independently review the record and findings. 



                                                                               6  

                                                                                 "Whether the Board made  

only about questions that are both contested and material." 

adequate findings is a question of law that we review de novo."7  



                  A workers' compensation settlement acts like a board award, except that  



                                          8  

it is more difficult to set aside.   A workers' compensation settlement agreement is a  



                      

contract, so the common law of contracts applies to workers' compensation settlements  

                                                                               9  Once the parties enter into  

"to the extent these standards are not overridden by statute." 



         3        Shehata  v.   Salvation  Army,  225  P.3d  1106,  1113  (Alaska  2010)  (citing  



Barrington v. Alaska Commc'ns Sys. Grp., Inc. , 198 P.3d 1122, 1125 (Alaska 2008)).  



         4        Barrington , 198 P.3d at 1125.  



         5        Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).  



         6        Rivera v. Wal-Mart Stores, Inc. , 247 P.3d 957, 962 (Alaska 2011) (citing  

                                                                                  

Bolieu v. Our Lady of Compassion Care Ctr. , 983 P.2d 1270, 1275 (Alaska 1999)).  



         7        Id. (citing Leigh v. Seekins Ford , 136 P.3d 214, 216 (Alaska 2006)).  



         8        Olsen Logging Co. v. Lawson, 856 P.2d 1155, 1158 (Alaska 1993).  



         9        Seybert v. Cominco Alaska Exploration, 182 P.3d 1079, 1093 (Alaska 2008)  



(citations omitted).  



                                                         6                                                      6819  


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

a  settlement  agreement,  the  agreement  cannot  be  modified  or  set  aside  because  of  

                                           10  A workers' compensation settlement agreement can be  

                                                                                                         

unilateral or mutual mistake.  

set aside due to misrepresentation.11  



          B.        The Board Had Jurisdiction To Approve The Settlement.  

                                                                                                                  



                    Rosales  argues  that  the  Board  did  not  have  jurisdiction  to  approve  the  

                                  



settlement  because  the  global  settlement  included  both  his  maritime  claim  and  his  

                                                                 



workers' compensation claim, and the Board does not have jurisdiction over maritime  



                                      

claims.  Icicle responds that the Board only approved the settlement of the workers'  



                                                                                                        

compensation  claim  and  was  thus  acting  within  its  jurisdiction.                                The  Commission  



decided that Rosales's position on this issue had no merit.  



                                                                                                                    

                    Ordinarily, a claim under the Alaska Workers' Compensation Act is the  



                                                                12  

                                                                                                   

exclusive remedy for an employee's injury.                          The Act's exclusive remedy provision, AS  



                                                                                                            13 

                                                                              

23.30.055, does not deprive a maritime employee of his federal remedies.                                        However, an  



                                      

employee is not entitled to a double recovery; the amounts awarded on one claim offset  

the recovery in the other.14  



                                                            

                    The parties here executed two separate documents, one for each case; they  



                        

presented only the workers' compensation settlement to the Board for approval.  The  



                                           

Board asked to see a copy of the maritime settlement to assist it in evaluating whether the  



                                     

workers' compensation settlement was in Rosales's best interests.  The Board took no  



                                                                                                            

action to approve or enforce the maritime settlement, which would have been beyond its  



          10        Olsen Logging Co., 856 P.2d at 1159.
  



          11        Seybert, 182 P.3d at 1093-94 (citations omitted).
  



          12        AS 23.30.055.
  



          13        State, Dep't  of Pub. Safety v. Brown, 794 P.2d 108, 110 (Alaska 1990). 
 



          14        Barber v. New England Fish Co. , 510 P.2d 806, 813 n.39 (Alaska 1973).
  



                                                                7                                                             6819  


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

jurisdiction.    But  the  Board  had  jurisdiction  both  to  determine  that  the  workers'  

compensation settlement was in Rosales's best interest and to approve the settlement.15  

                                                                                    



                                                                          16  

                   Rosales cites Gunter v. Kathy-O-Estates                   and the Commission's decision  



                                                       17 

                   

in Reeder v. Municipality of Anchorage                    to support his argument that the Board lacked  



jurisdiction  to  approve  the  settlement.    Both  cases  are  distinguishable.    In  Gunter  a  



disabled worker asked the Board to order his employer to reimburse him for damages,  



such as the cost of court-ordered alcohol treatment, that he believed stemmed from his  



                             18  

work-related  injury.                   

                                  We  held  that  the  Board  could  only  order  reimbursement  "if  

 [Gunter's] claims were compensable under the act," which they were not.19  

                                                                                                            Here the  



Board only approved a settlement of Rosales's workers' compensation claim; it did not  



approve or otherwise exercise jurisdiction over his maritime claim.  The Board considered  



                                                                                                         

the maritime settlement solely because the amount paid in the maritime case could offset  

future payments in the workers' compensation case.20  The Board weighed the amount of  



the offset in deciding whether the settlement was in Rosales's best interests.  



                   Reeder also presented a distinguishable issue.  In Reeder a police officer  



                                                                         

asked the Board to construe a settlement agreement in his workers' compensation case  



                                                                                

as including an agreement about injury leave, a benefit he received under his union's  



          15       AS 23.30.012.
  



          16       87 P.3d 65 (Alaska 2004).
  



          17       AWCAC            Dec.       No.      116       (Sept.      28,      2009),       available         at
  



http://labor.alaska.gov/wccomm/memos-finals/D_116.pdf.  



          18       Gunter, 87 P.3d at 69.  



          19       Id. at 69-70.  



          20       In the workers' compensation settlement, Rosales agreed that Icicle had  



"paid all compensation and medical benefits which [were] due as of the date" he signed  

                                                                                               

the settlement.  

                                                            8                                                       6819  


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

                                              21  

                                                                                                

contract with the Municipality.                   The Commission decided that the Board did not have  



                                                 

jurisdiction over injury leave, so that benefit could not have been included in the benefits  



                                                                                                                     

settled as part of the workers' compensation settlement, and the Board could not order the  

Municipality to stop withholding overpaid injury leave.22  



                    Rosales cites no authority for his argument that there cannot be a global  



                                                 

settlement of claims.  We have held that an employee may pursue both maritime and  



                                                                                             

workers' compensation claims, but we said that the employee was "not to be permitted  



                                                                                                           

double   recovery"   and   instructed   that   his   employer   could   recoup   any   workers'  



                                                                                                                              23  

                                                                                                      

compensation benefits already paid if the employee was successful in his maritime suit. 



                                                                      

When two claims are interrelated, settlement of both claims is permissible.  We conclude  



that  the  Board  acted  within  its  jurisdiction  in  approving  the  workers'  compensation  



settlement and that nothing prohibits a global settlement of related claims.  



                            

          C.	       The Commission Correctly Concluded That The Absence Of Medical  

                    Records Was Not Reversible Error.  

                    Relying   on   Smith   v.   CSK   Auto,   Inc.,24  

                                                                                       Rosales   contends   that   the  



                                                                                                                       

Commission erred in concluding that the absence of some medical records from his file  



                                                                       25  

at the time of approval was not reversible error.                          The Commission noted that records  



          21	       Reeder , AWCAC Dec. No. 116 at 2-3, 11.  



          22	       Id. at 13-14, 20.  



          23	       Barber v. New England Fish Co. , 510 P.2d 806, 813 n.39 (Alaska 1973).  



          24	       204 P.3d 1001 (Alaska 2009).  



          25        Rosales argues that the Commission made a factual error by identifying only  



the  foot-surgery  records  as  missing;  he  insists  that  "[t]he  medical  records  of  Drs.  

                                            

Ginsber[g], Becker, Feldman, and vocational rehabilitation specialist Mr. Shafer were  

missing too" because the Board did not "mention these records in the two hearings before  

                     

it approved" the settlement.  Rosales testified he had submitted records from Ginsberg,  

                                                                                                            (continued...)  

                                                               9                                                            6819  


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

related to Rosales's foot surgery had not been submitted to the Board until after the  

                                                          



settlement was approved, but it did not consider their omission reversible error because  

                                                



the records "expressed no opinion about whether Rosales was likely to need medical  

                                                                                                          



treatment in the future for his left foot condition, much less any opinion on whether such  

                                                                                                              



treatment was related to the 2007 work accident."  



                                                                                                             

                    In Smith the Board and Commission refused to set aside a settlement; we  



                                                       

reversed because the Board had not followed its own regulations when it approved the  

                26  We agree with the Commission that Smith is distinguishable.  The absence  

settlement.                                                                                                    



of  medical records was only one factor we considered in Smith : Smith did not attend the  

                                                                                                



hearing about the settlement, and the Board made no explicit findings about his best  



interests before approving a settlement for $10,000, yet all parties agreed Smith was not  

                                                                                                  

yet medically stable.27   Here, in contrast, the Board held two hearings about whether the  

                                    



settlement was in Rosales's best interests; Rosales attended both and testified at the  



second hearing that he thought the settlement was in his best interests.  He acknowledged  

                                                                    



he was giving up benefits, including medical benefits, but he nonetheless asked the  



                                                                                                                               28  

                                                              

Board to approve the settlement.  Unlike Smith, Rosales was represented by counsel. 



          25        (...continued)  



Becker, and Shafer to the Board before the settlement was approved; copies of these  

medical reports are in the record along with the medical summary Rosales submitted at  

                                        

that  time.    The  Commission  did  not  mention  Dr.  Feldman's  records  in  its  decision.  

                                                                                              

Copies of Dr. Feldman's chart notes and deposition are also in the record, but it is not  

clear when they were filed.  



          26        Smith, 204 P.3d at 1012-13.  



          27        Id. at 1010-12.  



          28        Id. at 1005.  



                                                               10                                                            6819  


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

                    While it appears that the foot-surgery records were not submitted to the  



                                                                     29  

                                                                         we said in Smith that "failure to submit  

Board until after the settlement was approved,  



                                                                                                           30  

complete medical records might not be reversible error in all cases."                                          The medical  



                                                      

records regulation ensures that the Board has as much current information as possible  



                                                                

when assessing a settlement agreement to see if it is in the employee's best interests.  We  



                                                    

have independently reviewed the foot-surgery records and agree with the Commission  



                                                              

that these records were not so important to the Board's understanding of Rosales's best  



                                                                            

interests that their omission was reversible error.  The records do not connect Rosales's  



                                               

foot  complaints  to  his  work  injury,  nor  do  they  indicate  that  Rosales  would  need  



                                                                                                                    

continuing treatment for his foot.   To the contrary, these medical records show that  



Rosales was recovering well from surgery.  



                    Rosales additionally argues that the foot-surgery records and Dr. Feldman's  



                                                                             

deposition showed he was not medically stable at the time of the settlement.  When an  



                                    

employee enters into a settlement waiving certain benefits before medical stability, the  



agreement is presumed not to be in his or her best interests, but the Board can still  



          29        Rosales faults Icicle for failing to submit medical records, but the Board's     



regulation requires both  parties to file medical reports.  See 8 Alaska Administrative Code  

(AAC) 45.052(d) (2012) (requiring all parties to file updated medical summaries with  

Board, along with copies of medical reports, within five days of getting medical reports).  

Nothing  in  the  record  indicates  that  Icicle  had  the  foot-surgery  records  before  the  

settlement.    Some  records  Rosales  discusses  were  reports  generated  in  the  maritime  

litigation for his attorney.  The record does not explain why Rosales's attorney did not  

submit copies of these reports to the Board.  As we noted earlier, the record does not  

                                                                                           

reflect  when  Dr.  Feldman's  deposition  or  records  were  filed,  but  Dr.  Feldman's  

deposition was taken by Rosales's attorney for the maritime case.  Rosales does not point  

to anything requiring a party to file a deposition with the Board.  



          30        Smith, 204 P.3d at 1012.  



                                                                11                                                             6819  


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

approve  the  settlement   if   an   employee  shows  that   waiver  is  in  his  best  interests.31  



Rosales agreed at the hearing on February 24, 2009, that he thought the settlement was  

                                               



in his best interests; he said the amount of money he was receiving would cover future  

                                                            



medical treatment and rehabilitation. Whether Rosales needed further medical treatment  

                                                     



for his work injuries was set out in the settlement as a dispute.  The Board mentioned the  



possible need for future medical treatment in making its best interests determination:  the  



chair asked Rosales more than once about the waiver of future medical benefits.  Rosales  

                                                           



agreed that he wanted the Board to approve the settlement even though he was "closing  



[his] future medical treatment."  The Board decided that the amount of the settlement and  

                                                                                             



the permitted offset made it unlikely Rosales would receive future medical payments and  

                                                   



approved the settlement.  



                   We agree with the Commission that the missing medical records in this case  



were not so critical to the Board's best-interest analysis that their absence required the  



Board to set aside the agreement, so we affirm the Commission's decision about the  



missing records.  



         D.	       The  Commission  Correctly  Concluded  That  Substantial  Evidence  

                   Supported The Board's Findings Regarding Misrepresentation And  

                                                                                      

                   Duress.  



                   Rosales's misrepresentation claim is related to the medical records issue:  



he alleges that Icicle committed fraud by saying in the settlement that "[a]ll medical  



reports  in  the  possession  of  the  employer  are  attached  and  incorporated  into  this  

                                                                     



Agreement" when Icicle did not submit all medical records with the agreement.   



                   The Commission correctly decided that substantial evidence supported the  



Board's decision.  To analyze Rosales's argument the Commission and Board used the  



misrepresentation standard from Seybert v. Cominco Alaska Exploration :  



         31        8 AAC 45.160(e).  



                                                           12	                                                      6819  


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

"the party seeking to avoid the contract must show (1) a misrepresentation; (2) which was  

                                            



fraudulent or material; (3) which induced the party to enter the contract; (4) upon which  

                                                

the party was justified in relying."32  

                                                    Rosales never explained how the statements about  



medical records induced him to enter into the settlement, so a misrepresentation claim  



using this standard must fail as a matter of law.  



                   Rosales's misrepresentation allegation appears to be akin to fraud on the  

                                                                            



tribunal rather than "regular" fraud: he claims that Icicle misrepresented to the Board that  

                                                    

Icicle did not have medical records in its possession when in fact it did have them.33 

                                                                                                                    Even  



if Rosales had proved all of his allegations, the fraud he alleges would not meet the  



                                            34  

standard for fraud on a tribunal.                                                              

                                                Furthermore, all of the allegedly omitted records were  



                                                                      

available to Rosales or his attorney, who had an independent obligation to submit them  

to the Board.35  



                   Rosales also argues that the Commission incorrectly decided that substantial  



                                                                                                    

evidence  supported  the  Board's  decision  that  the  settlement  should  not  be  set  aside  



                                                           

because of duress.  Rosales contends that Icicle's letter following the first Board hearing,  



demanding either a return of the money paid after execution of the documents or an  



affirmative statement from Rosales that he wanted the Board to approve the settlement,  

                                                                                           



          32       182 P.3d 1079, 1094 (Alaska 2008) (citing Bering Straits Native Corp. v.  



Birklid , 739 P.2d 767, 768 (Alaska 1987)).  



          33       See  Blanas  v.  Brower  Co.,  938  P.2d  1056,  1062-64    (Alaska  1997)  



(discussing the difference between fraud on the court and "regular" fraud under Alaska  

Civil Rule 60(b)).  



          34       See, e.g., Vill. of Chefornak v. Hooper Bay Constr. Co., 758 P.2d 1266, 1271  



(Alaska 1988) ("To constitute fraud on the court . . . conduct must be so egregious that  

                                                                         

it involves a corruption of the judicial process." (citing Stone v. Stone, 647 P.2d 582, 586  

n.7 (Alaska 1982); Allen v. Bussell , 558 P.2d 496, 500 (Alaska 1976))).  



          35       8 AAC 45.052(d).  



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"threatened [him] to say and do something against his will."  Icicle responds that it was     



"perfectly  reasonable"  to  ask  about  Rosales's  intentions  and  to  ask  for  return  of  the  



money if Rosales did not want to go through with the Board settlement.  We see nothing  



improper in Icicle's letter.  The letter merely requested return of the consideration Icicle  

                                                                        



had paid or an assurance that Rosales would perform as he agreed to in the contract.  



                     The Board found that Rosales's assertion that he felt pressured was not  



credible; it also determined that the fact the letter was sent to his attorney rather than  



directly  to  him  attenuated  any  possible  coercion.    The  Commission  decided  that  the  



Board's findings were supported by substantial evidence.  



                     The Board did not set out the legal standard it used to evaluate Rosales's  

                                                                                                         



duress claim, but the Commission used the standard we have adopted in contract cases:  



"a party alleging duress must show that (1) he involuntarily accepted the terms offered  



by another party; (2) the circumstances permitted no alternative course of action; and (3)  

                                                                                                                                 

such circumstances were the result of the coercive acts of the other party."36  

                                                                                                                           In its brief  



                                                                                  

before this court, Icicle uses a definition of "duress" from Black's Law Dictionary, which  



                                                                         

defines "duress" in part as:  "2. Broadly, . . . a threat of harm, used to compel a person  

to do something against his or her will or judgment . . . ."37  



                     No matter what legal standard is used, Rosales's duress claim is undercut  

                                                                                     



by the Board's finding that he was "not credible in his assertions he was not properly  



informed about the settlement or the benefits he was waiving, and he felt coerced or under  

                                                                                                            



duress when he testified to the board he wanted the workers' compensation settlement  



approved."  The Board has the sole power to determine the credibility of a witness, and  



           36        See Seybert, 182 P.3d at 1096 (citing Helstrom v. N. Slope Borough, 797  



P.2d 1192, 1197 (Alaska 1990)).  



           37        BLACK 'S LAW DICTIONARY 529 (9th ed. 2009).  



                                                                    14                                                                 6819  


----------------------- Page 15-----------------------

                                                                                  38  

its  credibility  findings  are  binding  on  the  Commission.                          Because  of  the  credibility  



finding, Rosales could not show that he accepted the terms of the agreement involuntarily,  

                                                                      



nor could he show that he was compelled to do something against his will.  



                   Because the Commission correctly determined that substantial evidence  



supported  the  Board's  findings  about  duress  and  misrepresentation,  we  affirm  the  

                                   



Commission's decision on these issues.  



          E.	      The Board Made Adequate Findings And Adequately Considered The  

                   Evidence.  



                   Rosales maintains that the Board made inadequate findings and failed to  

                                                                                                           



consider all of the evidence.  Rosales argues that the Board did not (or could not) consider  



all of his medical records when it decided to approve the settlement as being in his best  

                           



interests.  



                   In any event, Rosales and his attorney had the means to submit copies of any  

                                       



medical  records  or  depositions  they  deemed  relevant  to  the  Board's  best  interests  



determination before the hearings about approving the settlement.  All of the medical  



records Rosales mentions, with the possible exception of the foot-surgery records, were  



in  the  possession  of  his  attorney  before  the   Board  hearings  on  the  settlement.  

                                                                        



Additionally, as the Board observed in its decision about setting the agreement aside,  

                                                                            



Rosales testified under oath that he thought the agreement was in his best interests and  



that he understood he was waiving future medical benefits.  The Board's questions about  

                                                                                      



Rosales's medical treatment and retraining plans indicate that it considered the evidence  

                                                                                            



and made adequate findings about his best interests.  



          F.	      Hearing Officer Conduct  



                   In his appeal to the Commission, Rosales raised for the first time a question  

                                                                                                         



of hearing officer bias.  He contended that the Board chairperson should have been  



          38       AS 23.30.122, .128(b).  



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----------------------- Page 16-----------------------

                                                                                                                       

disqualified because she had represented Seabright Insurance Company, a party in this  



                                                                        39  

                                                                            The Commission said in a footnote  

case, within two years prior to the Board hearing. 



that the argument had "no merit" and was not adequately briefed.  



                    Rosales relies on AS 22.20.020(a)(5), which provides that "[a] judicial  



officer  may  not  act  in  a  matter  in  which  .  .  .  a  party  .  .  .  has  retained  or  been  



                                                                             

professionally counseled by the judicial officer as its attorney within two years preceding  



                                                                         

the assignment . . . ."  But this statute does not apply to the Workers' Compensation  

Board - it applies only to judges, not to administrative hearing officers.40  



                    Alaska  Statute  44.64.050  is  the  statute  that  governs  the  conduct  of  

                                                             

administrative law judges and hearing officers.41  

                                                                                           

                                                                      Rosales cites a regulation adopted under  



                                                                       

this statute that provides in part:  "A conflict of interest exists if . . . a hearing officer or  



administrative law judge previously represented or provided legal advice to a party on a  

specific subject before the hearing officer or administrative law judge."42 

                                                                                                          This regulation  



does  not  define  the  term,  "specific  subject,"  but  a  separate  provision  states  that  the  



                                                                                                        

"[c]ommentary on and decisions applying the Alaska Code of Judicial Conduct may be  

used as guidance" in interpreting the code of hearing officer conduct.43  



          39        In his brief before the Commission and in this court, Rosales cited published   



Board  decisions  indicating  that  the  Board  chairperson  had  previously  represented  

Seabright Insurance Company in a workers' compensation case.  



          40        See AS 22.20.020 (defining "judicial officer" as a supreme court justice, a  

                                                              

court of appeals judge, a superior or district court judge, or a magistrate).  



          41        AS 44.64.050(b); 2 AAC 64.010 (2012).  2 AAC 64.010-.090 is the code  

                                                                                             

of hearing officer conduct.  



          42        2 AAC 64.040(a)(2).  



          43        2 AAC 64.030(c).  



                                                              16                                                           6819  


----------------------- Page 17-----------------------

                       Under the Code of Judicial Conduct, a judge must disqualify himself or   



herself in a proceeding where "the judge served as a lawyer in the matter in controversy     



            44  

                   Thus,  a  judge  is  generally  disqualified  only  when  the  judge  previously  

.  .  .  ."                                                                                                            

represented one of the parties in the same case or a substantially related matter.45  Under  

                                                                                                                                          



this rule, "unless there is a specific showing of bias, a judge is not disqualified merely  

                                                              



because he or she worked as a lawyer for or against a party in a previous, unrelated  



              46  

                     We  interpret  the  regulation  under  consideration  in  the  same  manner:    A  

matter."                                                                          



hearing officer is generally not disqualified simply because he or she has previously  

                                                                                                                            



represented one of the parties on an unrelated matter.  



                             

                       In  this  case,  there  was  no  evidence  that  the  Board  chairperson  had  



                                                                                                             

previously represented Seabright in connection with Rosales's workers' compensation  



claim or any related matter.  Her previous representation of Seabright, therefore, did not  



involve  the  same  "specific  subject"  as  the  current  litigation.    We  conclude  that  the  



chairperson did not have a disqualifying conflict of interest.  



V.          CONCLUSION  



                       For the foregoing reasons, we AFFIRM the Commission's decision.  



            44         Alaska Code of Judicial Conduct Canon 3(E)(1)(b).  



            45         See  Mustafoski   v.  State,  867  P.2d  824,  832  (Alaska  App.  1994);  see  



generally           RICHARD             E.     FLAMM ,           JUDICIAL           DISQUALIFICATION :                    RECUSAL            AND  

DISQUALIFICATION OF JUDGES ,  11.1 at 283-85 (2d ed. 2007).  



            46         Mustafoski , 867 P.2d at 832; see generally FLAMM ,  11.2 at 286-88.  



                                                                         17                                                                      6819  

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