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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,  

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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.  


                  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.  


                    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

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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

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                    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  



                    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,


                                                                 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  


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

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

decision.  Rosales appeals.  


         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  


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


                                                                "The Board is required to make findings  

independently review the record and findings. 


                                                                                 "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  


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  

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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  



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



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  

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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  



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



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  


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  

          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  

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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'  



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  


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,  


                                                               9                                                            6819  

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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  


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  



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  

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


                                                                         we said in Smith that "failure to submit  

Board until after the settlement was approved,  


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  



                   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 


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


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).  

                                                            13                                                         6819  

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

"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-----------------------


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  


                   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  



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


                                                                            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  

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                       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     


                   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  


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


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.  

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