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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska State Commission for Human Rights v. United Physical Therapy, United Physical Therapy v. Alaska State Commission for Human Rights (4/16/2021) sp-7516

Alaska State Commission for Human Rights v. United Physical Therapy, United Physical Therapy v. Alaska State Commission for Human Rights (4/16/2021) sp-7516

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



ALASKA  STATE  COMMISSION                                    )  

FOR  HUMAN  RIGHTS,                                          )    Supreme  Court  Nos.  S-17634/17650  

                                                             )  

                                 

          Appellant and Cross-Appellee,                                                       

                                                             )    Alaska Workers' Compensation  

                                                                                                           

                                                             )    Appeals Commission No.  18-024  

          v.	                                                )  

                                                                                     

                                                             )    O P I N I O N  

                                    

UNITED PHYSICAL THERAPY,                                     )  

                                                                                                   

                                                             )    No. 7516 - April  16, 2021  

                                

          Appellee and Cross-Appellant.	   )
  

                                                             )
  



                                                                                                   

                    Appeal  from the  Alaska  Workers'  Compensation Appeals  

                    Commission.  



                                                                                                 

                    Appearances:              Adam   R.   Franklin,   Assistant   Attorney  

                                                                                                 

                    General,  Anchorage,  and  Kevin  G.  Clarkson,  Attorney  

                                                                                                      

                    General, Juneau, for Appellant and Cross-Appellee.  James  

                                                                                                          

                    C. Croft, The Croft Law Office, Anchorage, for Appellee and  

                    Cross-Appellant.  



                                                                                                         

                    Before:         Bolger,  Chief  Justice,  Winfree,  Maassen,  and  

                                                                                      

                    Carney, Justices.  [Borghesan, Justice, not participating]  



                                                

                    BOLGER, Chief Justice.  



I.        INTRODUCTION  



                                                                                                                     

                    After an employer filed a retroactive controversion of medical treatment,  



                                                                                                                       

the  employee's  healthcare  provider  filed  a  workers'  compensation  claim  seeking  



                                                                                                                     

payment  for  services it provided  before  the  controversion was  filed.   The  employer  



                                                                              

disputed its liability for payment, and after several prehearing conferences, the Alaska  


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

Workers' Compensation Board set a hearing on the merits of the provider's claim.                                                                                                                                                                                           The  



Board ordered the employer to pay the provider approximately $510.00 for the services.                                                                                                                                                                                                      



The employer appealed, disputing several procedural aspects of the decision, and the                                                                                                                                                                                           



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



We affirm the Commission's decision.                                                             



II.                   FACTS AND PROCEEDINGS                           



                                                                                                                                                                                                            1  

                                           An Alaska State Commission for Human Rights                                                                                                                                                                                    

                                                                                                                                                                                                                (State) employee with  



                                                                                                                                                                                                                                                             

preexisting medical conditions was involved in a work-related motor vehicle accident  



                                                                                                                                                                                                                                                                               

in January 2017.  The employee consulted with Dr. Teresa Bormann two days after the  



                                                                                                                                                                                                                                                                                

accident, complaining of "neck, back and hip pain after [a motor vehicle accident]."  X- 



                                                                                                                                                                                                                                                            

rays taken at the time showed no fractures and mild degenerative changes "without  



                                                                                                                                                                                                                                                 

evidence  of  an  acute  injury."                                                                          Dr.  Bormann  referred  the  employee  to  chiropractic  



treatment.  



                                                                                                                                                                                                                                                         

                                           After several months of treatment the employee returned to Dr. Bormann,  



                                                                                                                                                                                                                                                                               

who diagnosed "a prolonged whiplash type injury of the lateral neck muscles."   In  



                                                                                                                                                                                                                                                                  

December  2017  Dr.  Bormann  referred  the  employee  to  physical  therapy  at  United  



                                                                                                                                                                                                                                                                          

Physical Therapy (UPT) for chronic neck pain and headache.  After an evaluation UPT  



                                                                                                                                                                                                                                                                                

recommended eight weeks of twice weekly physical therapy. Dr. Bormann endorsed the  



                                                                                                                                                                                                                                                                              

treatment plan, and the employee's symptoms improved enough that she reduced her  



                      1                     The   parties'   briefs   and   the   Commission's   decision   identify   the   State,  



Department of Health & Social Services as the State agency involved in this litigation.                                                                                                                                                                                                     

The January 2017 report of injury, the employer's answer, and other documents in the                                                                                                                                                                                           

record   identify   the   agency   for   which  the   employee   worked   as   the   Alaska   State  

Commission for Human Rights. There is no indication that the employee worked for the                                                                                                                                                                                            

Department of Health & Social Services; that agency is not named in the record until the                                                                                                                                                                                       

Department of Law entered an appearance about three weeks after it answered the health                                                                                                                                                                                

care provider's written claim.                                                                    



                                                                                                                                        -2-                                                                                                                              7516
  


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physical therapy visits to once a week beginning in mid-January.  She saw UPT three  



                                                                                                                         

times in February 2018.  Payment for these February visits became the main dispute  



                            

before the Board.  



                                                                                                                              

                    The   State   arranged   an   employer's   medical   evaluation   (EME)   on  



                                                                                                                                

February 28, 2018, with Dr. M. Sean Green, a neurologist, and Dr. R. David Bauer, an  



                                                                                                                        

orthopedist.  The State provided few medical records to the doctors:  the EME report's  



                                                                                                                      

chart review section summarized one chart note from 2005 and one from 2010, followed  



                                                                                                                          

by Dr. Bormann's notes. Dr. Green expressed concern with the dearth of records related  



                                                                                                                      

to  the  employee's  preexisting  conditions.                        The  doctors  thought  they  had  adequate  



                                                                                                                               

information to comment on causation, but included a disclaimer indicating that the  



                                                                                                                            

medical  records  the  State  provided  were  "insufficient  to  fully  understand  [the  



                                                                                         

employee's] current complaints and medical conditions."  



                                                                                                                                

                    The EME doctors diagnosed the employee with a cervical strain caused by  



                                                                                                                               

the accident as well as several conditions they considered preexisting or unrelated to the  



                                                                                                                              

work injury.  The doctors stated that cervical strain is "an inherently self-limited and  



                                                                                                                              

benign condition," which typically resolves "in a matter of days to weeks."  They said  



                                                                                                                            

that "[t]here is, in biological terms, no such thing as a chronic muscle strain."  They  



                                                                                                                                     

identified the employee's preexisting conditions as the cause of her continuing pain.  



                                                                                                                               

They did not think the accident had aggravated any of her preexisting conditions, did not  



                                                                                                                      

think any treatment after Dr. Bormann's initial examination was related to the accident,  



                                                                                                                           

and concluded no further treatment was needed.  The EME doctors thought the work- 



                                                                                                                               

related condition was medically stable and, in response to questions about whether the  



                                                                                                                       

employee had  a permanent impairment under  the criteria in  the American  Medical  



                                                               -3-                                                         7516
  


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

                                                                                                                                     2  

Association Guides                        to theEvaluation                     ofPermanent Impairment                                  (theGuides),                they stated  



that the employee did not have a permanent partial impairment.                                                                            



                             Based on               the EME report the State filed a notice of controversion on                                                                     



March 13, retroactively controverting all care after January 2017; the State had received                                                                               

                                                                                                                                                            3   UPT filed a  

UPT's invoices for the employee's February treatments the day before.                                                                                                                   



workers' compensation claim and request for a prehearing conference shortly after the  

                                                                                                                                                                                    



State's controversion notice.  It took the position that the State owed a penalty as well  

                                                                                                                                         



as interest on the disputed balance because the State had "never submitted payment or  

                                                                                                      



denial" for the specific claims, making UPT's total claim $1,033.27.  

                                                                                                                                                      



                             The State answered the claim, and wrote to UPT expressing "confus[ion]  

                                                                                                                                                               



regarding the scope of [its] Workers' Compensation Claim"; it asked for clarification  

                                                                                                                                                                



about whether UPT was "contesting the controversion itself, i.e. the medical basis for the  

                                                                                                                                                                                    



controversion . . . or only the non-payment of those treatment dates."  The State then  

                                                                                                                                                                                 



requested  a  prehearing  conference  "in  order  to  determine  [UPT's]  position  on  the  

                                                                                                                                                                                   



controversion."  

                                   



                             According to a summary of the July prehearing conference, UPT "was not  

                                                                                                                                                                                    



seeking to challenge the controversion itself, but argued that the medical bills should be  

                                                                                                                                                                                      



paid even with the controversion in place."  The prehearing conference summary does  

                                                                                                                                                                                



not show an explicit agreement to limit the issues for hearing.  UPT filed an affidavit of  

                                                                                                                                                                                      



              2              AM.M          ED.A       SS'N,G         UIDESTOTHE                   EVALUATIONOF                      PERMANENT  IMPAIRMENT  



(6th ed. 2008) [hereinafter G                                 UIDES].   AS 23.30.190(b) requires use of the Guides when                                                        

assessing permanent partial impairment.                      



              3              The State initially refused to pay for two December 2017 visits as well as  

                                                                                                                                                                                      

the February visits, claiming that UPT had not billed them in a timely manner.  At the  

                                                                                                                                                                                    

hearing the parties informed the Board that the State had agreed to pay for the December  

                                                                                                                                                                     

visits, and the Board subsequently denied UPT's claim for penalties and interest on the  

                                                                                                                                                                                    

December bill.  

                                  



                                                                                          -4-                                                                                  7516
  


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

readiness for hearing on "the issues set forth in the Workers' Compensation Claim," and                                                                                                                                                                          



the parties met for a second prehearing conference.                                                                                                               The August prehearing summary                                               



identified   the   issue   for   hearing   as   the   "Merits   of   [UPT's]   3/23/2018   Workers'  



Compensation Claim." Neither party sought to amend or clarify this summary before the                                                                                                                                                                             



hearing.   



                                         In its hearing brief the State identified the issue as UPT's "claim that                                                                                                                                              



Employer owes it payment for medical treatment services provided to Employee."                                                                                                                                                                                The  



 State   acknowledged   that   a   medical   provider   may   bring   a   claim for                                                                                                                                           services   it   has  



provided, but contended that it did not owe UPT for its services because the State                                                                                                                                                                         



                                                                                                                                                                                                               4  

controverted care within 30 days of receiving UPT's February bill.                                                                                                                                                 



                                         UPT responded that the State should pay for the February services because  

                                                                                                                                                                                                                                                   



the State controverted the care only after it had been provided and without prior notice  

                                                                                                                                                                                                                                                         



to UPT.  UPT took the position that a controversion should not apply retroactively and  

                                                                                                                                                                                                                                                                



argued that the State should have acted earlier if it believed treatment beyond the initial  

                                                                                                                                                                                                                                                          



evaluation was unreasonable or unnecessary.   UPT asserted that the State failed to  

                                                                                                                                                                                                                                                                    

adequately explain its nonpayment of the bills within 30 days, as required by regulation.5  

                                                                                                                                                                                                                                                                               



And it disputed the EME report's conclusion, arguing it was "virtually impossible to  

                                                                                                                                                                                                                                                                     



state with certainty that 'the condition resolved itself within days of the collision' after  

                                                                                                                                                                                                                                                             



the patient had already been treated."  

                                                                                                                     



                     4                   See  AS 23.30.097(d) (giving employer 30 days to pay employee's medical                                                                                                                                    



bills);  see also                            8 Alaska Administrative Code (AAC) 45.082(d)(1) (2020) (requiring the                                                                                                                                                

employer to "notify the employee and medical provider in writing the reasons for not                                                                                                                                                                             

paying all or a part of the bill or the reason for delay in payment no later than 30 days   

after receipt of the bill" when the employer controverts a bill).                                                                                                               



                     5                   See 8 AAC 45.082(d)(1).  

                                                                              



                                                                                                                                  -5-                                                                                                                       7516
  


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

                                                   At the hearing the Board chair identified the hearing issue as UPT's "claim                                                                                                                                                                                      



for medical costs . . . plus a penalty and interest." No one objected or offered a different                                                                                                                                                                                                             



opinion about what was at issue. Only UPT's non-attorney representative testified about                                                                                                                                                                                                                                  



the contested payments; the employee attended but said little.                                                                                                                                                                                 



                                                   Near the end of the hearing, confusion about its scope became evident.                                                                                                                                                                                                                        



After the State's attorney remarked that a discussion of the EME report was "not relevant                                                                                                                                                                                                                      



to the issues here," the Board chair stated that in order to decide the issue the Board                                                                                                                                                                                                                              



panel would "have to look at the EME, see if it's credible." The State objected, "Are you                                                                                                                                                                                                                                      



 serious?"    The State disputed whether the issue before the Board was the same as it                                                                                                                                                                                                                                                 



would be if the employee, rather than the provider, had filed the medical claim but did                                                                                                                                                                                                                                          



not clarify how those claims would differ.                                                                                                                           



                                                    TheBoard                                 chair explained thattheAlaskaWorkers'CompensationAct(the                                                                                                                                                                          



Act) required all parties to file medical records in their possession with the Board within                                                                                                                                                                                                                          

                                                                                                                       6       He told the State that the only medical records in the  

five days after a claim is filed.                                                                                                                                                                                                                                                                                                



Board file other than the EME report were UPT's treatment records and one medical  

                                                                                                                                                                                                                                                                                                              



record from Dr. Bormann.  The chair noted that the EME report "clearly refer[red] to a  

                                                                                                                                                                                                                                                                                                                                         



number of other medical notes" which the State had not filed with the Board.  After  

                                                                                                                                                                                                                                                                                                                      



deliberation the Board decided to leave the record open for the parties to file any medical  

                                                                                                                                                                                                                                                                                                                



records in their possession.  

                                                                                                           



                                                    The State asked the Board to reconsider its decision about the medical  

                                                                                                                                                                                                                                                                                                              



records, arguing that the Board's intent to evaluate the evidence did "not comport with  

                                                                                                                                                                                                                                                                                                                            



the issues identified for hearing" in the July prehearing summary. The State argued that  

                                                                                                                                                                                                                                                                                                                               



a Board regulation "limit[ed] the issues for hearing to those that are in dispute at the end  

                                                                                                                                                                                                                                                                                                                                



of the prehearing" and that "the summary governs the issues and the course of the  

                                                                                                                                                                                                                                                                                                                                



                          6                        AS 23.30.095(h).  

                                                                  



                                                                                                                                                                  -6-                                                                                                                                                                      7516  


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

                                                         7  

hearing."    In an interlocutory order the Board denied reconsideration of its order to                                                                                                                                                                                                                                                                                                                                                                                                                                              



provide the medical records, but stated it would determine the precisehearing                                                                                                                                                                                                                                                                                                                                                                                                  issues after  



 deliberation.   



                                                                                  In its final written decision the Board set out two issues relevant to this                                                                                                                                                                                                                                                                                                                                                             



 appeal:   (1) whether the issue for hearing was "medical costs" or the question "whether                                                                                                                                                                                                                                                                                                                                                                                                 



 [the   State]   is   required   to   pay   medical  bills  filed   within   thirty   days   preceding   a  



 controversion"; and (2) whether UPT was entitled to payment, penalty, or interest for the                                                                                                                                                                                                                                                                                                                                                                                                                                      



February visits.                                                                                  



                                                                                  The Board found that in discovery responses UPT had "explained it was                                                                                                                                                                                                                                                                                                                                                                   



 seeking fees for [specific] dates of service plus penalty and interest."                                                                                                                                                                                                                                                                                                                                                              It also found that                                                                  



 at the August prehearing "[t]he issues for hearing were identified as the 'Merits of                                                                                                                                                                                                                                                                                                                                                                                                                                              



Provider's 3.23.2018 Workers' Compensation Claim.' "                                                                                                                                                                                                                                                                                                                  And the Board found that                                                                                                                           



 "[n]either party requested the August . . . prehearing conference summary be amended                                                                                                                                                                                                                                                                                                                                                                                                     



 or reconsidered."                                                                                          



                                                                                  On the question of the hearing issue, the Board noted the State's reliance                                                                                                                                                                                                                          



 on the sentence in the July prehearing conference summary indicating that UPT "was not                                                                                                                                                                                                                                                                                                                                                                                                                                        



 seeking to challenge the controversion itself, but argued that the medical bills should be                                                                                                                                                                                                                                                                                                                                                                                                                                         



paid even                                                       with   the   controversion   in   place."     The Board                                                                                                                                                                                                                                                   thought the summary                                                                                                                           was  



 ambiguous as to whether UPT was "conceding facts underlying the controversion were                                                                                                                                                                                                                                                                                                                                                                                                                                 



 correct, or merely acknowledging the controversion was not unfair or frivolous."  The                                                                                                                                                                                                                                                                                                



Board pointed out that in July, UPT had "lacked the evidence to analyze the [EME]                                                                                                                                                                                                                                                                                                                                                                                                                     



 doctors' conclusions" because the State had not "filed the medical reports upon which                                                                                                                                                                                                                                                                                                                                                                                   



the EME doctors relied."                                                                                                                                    



                                         7                                        See  8 AAC45.065(c) (providingthat                                                                                                                                                                                            prehearingconferencesummary                                                                                                                                                                         "will  



 limit the issues for hearing to those that are in dispute at the end of the prehearing" and                                                                                                                                                                                                                                                                                                                                                                                                                                

that summary "governs the issues" unless modified).                                                                                                                                                                                                               



                                                                                                                                                                                                                                                                  -7-                                                                                                                                                                                                                                                 7516
  


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

                        The Board then decided that statements in the July prehearing summary                                              



were   irrelevant   in   any   event   because   the   August  prehearing   conference   summary  



explicitly identified the issue for hearing as the merits of UPT's claim"for medical costs,                                                       



penalty, and interest."  Because the Board's regulations provide that "the issues stated  



in   the    prehearing   conference   summary   control   unless   unusual   and   extenuating  

                                      8  and the State "did not identify any such circumstances," the issue  

circumstances exist,"                                                                                                                               



for hearing was medical costs.  

                                                         



                        The Board concluded that the State had to pay for the February service  

                                                                                                                                               



dates.  It gave little weight to the EME report when evaluating the evidence, relying in  

                                                                                                                                                         



part on the Guides' recognition that " '[n]on-specific chronic recurrent neck pain (also  

                                                                                                                                                    



known  as  chronic  strain/sprain,  .  .  .  chronic  whiplash,  etc.)'  can  be  the  basis  of  a  

                                                                                                                                                          

                                            9   The Guides thus contradicted the EME doctors' "opinion that  

permanent impairment."                                                                                                                                

                     



there was no such thing as a chronic muscle strain."  The Board noted that Dr. Bormann  

                                                                                                                                            



and the employee's chiropractor "diagnosed cervical strain well past two weeks after the  

                                                                                                                                                       



injury" and that the employee had "significantly improved" with physical therapy.  The  

                                                                                                                                                     



Board found the medical care UPT provided to be "reasonable and necessary" and  

                                                                                                                                                     



ordered the State to pay for the February visits. It did not impose a penalty but did award  

                                                                                                                                                  



UPT interest for the late payments.  

                                                                 



                        The State appealed to the Commission and asked it to stay the Board's  

                                                                                                                                              



order for medical benefits.  It filed an affidavit stating it would suffer irreparable harm  

                                                                                                                                                   



if it had to pay UPT because (1) "there is no mechanism under [the Act] to recoup the  

                                                                                                                                                       



payments" if the State won the appeal and (2) "making the payments only to later recoup  

                                                                                                                                                



            8           See  8  AAC  45.070(g).  



            9           GUIDES,  supra  note  2,  at  564.  



                                                                           -8-                                                                          7516  


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

                                                                                                                                                                             10  

the payments creates irreparable and unnecessary transaction costs."                                                                                                              The Commission   



interpreted the State's affidavit as asserting "that no additional benefits are due to [the     



employee] or to UPT." It granted the stay, deciding that even though the amount at issue                                                                                                                          



appeared to be less than $1,000.00, the State would suffer irreparable harm absent a stay.                                                                                                                                       



The Commission did not consider whether the appeal raised a serious and substantial                                                                                                                



                                                           11  

question on the merits.                                          



                                   The Commission also notified UPT that it requires corporations to be  

                                                                                                                                                                                                                       



represented by attorneys if they intend to appear before it; it instructed UPT to get an  

                                                                                                                                                                                                                        



attorney if it "intend[ed] to participate" in the appeal.   UPT eventually retained an  

                                                                                                                                                                                                                        



attorney after being advised that it "could file a motion for attorney fees" if it prevailed  

                                                                                                                                                                                                       



on appeal and that "[i]t would be up to the Commission to decide the motion."  

                                                                                                                                                                                                            



                                   In May 2019 the employee asked the Commission to dismiss her from the  

                                                                                                                                                                                                                       



appeal  as  she  had  "no  claim to  any  possible  settlement"  that  might  result.                                                                                                                          Email  

                                                                                                                                                                                                             



correspondence fromNovember 2018 between the State and the employee was attached;  

                                                                                                                                                                                                        



in it the State told the employee that the State's "lien/interest" related to the accident was  

                                                                                                                                                                                                                     



"settled," leaving the employee "free to negotiate/settle or otherwise handle [her] claim  

                                                                                                                                                                                                                



                 10               See  8 AAC57.100(g) (governing stays fromthe Commission and                                                                                                          requiring  



an affidavit of irreparable harm without a stay).                                                          



                 11               See  Olsen  Logging  Co.  v.  Lawson,  832  P.2d  174,  176  (Alaska  1992)  

                                                                                                                                                                                                              

(requiring  that  appellant  raise  serious  and  substantial  questions  on  the  merits  and  

                                                                                                                                                                                                                    

inability to recoup payments to stay lump sum workers' compensation awards); see also  

                                                                                                                                                                                                                    

Fluor  Alaska,  Inc.  v.  Rodriguez,  AWCAC  Dec.  No.  199  at  11  (July  31,  2014),  

                                                                                                                                                                                                            

http://labor.state.ak.us/WCcomm/memos-finals/D_199.pdf(construingAS23.30.125(c)  

                                                                                                                                                                                               

as encompassing both parts of Olsen Logging test for stays of past benefits).  

                                                                                                                                                                            



                                                                                                            -9-                                                                                                   7516
  


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

as [she saw] fit."                12  The Commission dismissed the employee from the appeal after the                                                                   



                                                                            13  

State filed a notice of non-opposition.                                          



                           After briefing from both parties the Commission affirmed the Board's  

                                                                                                                                                             



decision.  As relevant to this appeal, the Commission determined that 8 AAC 45.065(c)  

                                                                                                                                                          



governed the question whether the merits of UPT's claim were at issue and decided that  

                                                                                                                                                                      



the Board had "properly identified the issues as whether the treatment provided by UPT  

                                                                                                                                                                    



was compensable and, thus, payable to UPT, and whether UPT would be entitled to  

                                                                                                                                                                         



interest and penalty" for the visits.  

                                                          



                           The Commission rejected the State's argument that the Board improperly  

                                                                                                                                                        



considered  the  Guides  when  evaluating  the  medical  evidence.                                                                      It  cited  precedent  

                                                                                                                                                         



establishing  that  the  Board  may  rely  on  its  own  "experience,  judgment,  [and]  

                                                                                                                                                                  

                                                                                                                 14 when making a decision and  

observations" as well as "inferences drawn from [them]"                                                                                                                

                                                                                                  



concluded the Board had done so in this case because AS 23.30.190(b) requires use of  

                                                                                                                                                                          



the Guides.  And the Commission noted the Board's statutory authority to weigh the  

                                                                                                                                                                       

                                                                    15 as well as decisions holding that the Act requires the  

evidence and determine credibility                                                                                                                                      

                                                 



             12            Under AS 23.30.015(a), when a "third person other than the employer or                                                                         



a fellow employee is liable for damages," the employer is entitled to reimbursement for                                                                                 

compensation it has paid from any damages the third party pays.                                                                    



             13            Because the employee was not a party to the Commission appeal at the time  

                                                                                                                                                                     

of the Commission's final decision, she is not a party to this appeal.  Alaska R. App.  

                                                                                                                                                                   

P. 204(g).  

      



             14           Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d 528, 533-34  

                                                                                                                                                               

(Alaska 1987).  

                  



             15            See  AS  23.30.122  ("The  board  has  the  sole  power  to  determine  the  

                                                                                                                                                                      

credibility of a witness.  A finding by the board concerning the weight to be accorded a  

                                                                                                                                                                           

witness's testimony, including medical testimony and reports, is conclusive even if the  

                                                                                                                                                                        

evidence is conflicting or susceptible to contrary conclusions.").  

                                                                                                   



                                                                                   -10-                                                                            7516
  


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

Commission "to follow the Board's credibility findings."16  The Commission likewise   



rejected the State's argument that the Board misinterpreted AS 23.30.095(h), which                                                                                                                                                                                                                                                                             



requires all parties to file relevant medical records in their possession within five days   



after an interested party files a claim.                                                                                                                              



                                                           The Commission also considered whether the employee should have been                                                                                                                                                                                                                                        



formally joined as a party.                                                                                            The State asserted that not joining the employee "severely                                                                                                                                                                 



affect[ed] both [parties'] rights going forward" and suggested that because the employee                                                                                                                                                                                                                                                         



was not formally joined, she was merely a witness for UPT.                                                                                                                                                                                                               The Commission said the                                                                              



 State had a direct liability to UPT, which could bring a claim on its own behalf, and                                                                                                                                                                                                                                                                                     



observed that the employee testified at the hearing but the State chose not to cross-                                                                                                                                                                                                                                                                           



examine her.                                              The Commission thus concluded that formal joinder was "neither needed                                                                                                                                                                                                                             



nor warranted" and that the State was not prejudiced by the Board's failure to join the                                                                                                                                                                                                                                                                                       



employee.    Finally the Commission decided the Board's decision was supported by                                                                                                                                                                                                                                                                                              



substantial evidence.                                                                         



                                                           The State now appeals the Commission's decision. UPT cross-appeals the                                                                                                                                                                                                                                              



Commission's stay order.                                                              



III.                          STANDARD OF REVIEW                                                               



                                                           In an appeal from the Commission, we review the Commission's decision                                                                                                                                                                                                                       

                                                                                        17   We review an agency's interpretation of its own regulation under  

and not the Board's.                                                                                                                                                                                                                                                                                                                                               

the reasonable basis standard.18   An agency's application of its regulation to the facts of  

                                                                                                                                                                                                                                                                                                                                                                                   



                              16                           Sosa de Rosario v. Chenega Lodging                                                                                                                                  , 297 P.3d 139, 146 (Alaska 2013).                                                                                           



                              17                          Humphrey v. Lowe's Home Improvement Warehouse, Inc., 337 P.3d 1174,  

                                                                                                                                                                                                                                                                                                                                                                   

 1178 (Alaska 2014).                                         



                              18                          Eder v. M-K Rivers, 382 P.3d 1137, 1140 (Alaska 2016).  

                                                                                                                                                                                                                                                                                         



                                                                                                                                                                                      -11-                                                                                                                                                                             7516
  


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

                                                                                           19  

a case is reviewed for an abuse of discretion.                                                  We will find an abuse of discretion when                                 



                                                                                                                                                                20  

the decision on review is "arbitrary, capricious, or manifestly unreasonable."                                                                                       "When  



                                                                                                                                                                

we review the Commission's legal conclusions about the Board's exercise of discretion  



                                                                                                                                                                         

or legal rulings, we . . . independently assess the Board's rulings and in so doing apply  



                                                                           21  

                                                          

the appropriate standard of review." 



IV.	          DISCUSSION  



                                                                                                                                                               

              A.	           The           Commission                       Correctly                  Concluded                     That            The           Board's  

                                                                                                                                                                               

                            Interpretation And Application Of Its Regulations To The Facts Of  

                                                                                                                                         

                            This Case Were Reasonable And Not Arbitrary.  



                                                                                                                                                                              

                            The State argues that the Board misinterpreted its own regulations or the  



                                                                                                                                                                              

prehearing summaries in deciding that the issue before it included an assessment of the  



                                                                                                                                                                              

medical evidence. The State contends that at the July prehearing UPT agreed to limit the  



                                                                                                                                                                                

hearing issue to a narrow legal question about the State's receipt of UPT's invoices.  In  



                                                                                                                                                                   

the State's view the statement UPT made at the July prehearing conference had changed  



                                                                                                                                                                             

the  "merits"  of  UPT's  claim  by  removing  from  the  Board's  consideration  the  



                                                                                                                                                                          

compensability of the medical care UPT provided. At oral argument before us, the State  



                                                                                                                                                                                

set out the option of a remand so that UPT could either file a new claim or "rescind[] its  



                                                                                                                         

stipulation" that it was not challenging the controversion.  



                                                                                                                                                                    

                            UPT  responds  that  the  Board  acted  reasonably  because  the  August  



                                                                                                                                                                           

prehearing  conference  summary  is  the  only  prehearing  conference  summary  that  



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



("The scope of review for an agency's application of its own regulations to the facts is                                                                                         

limited to whether the agency's decision was arbitrary, unreasonable, or an abuse of                                                                                            

discretion.").  



              20            Tufco, Inc. v. Pac. Envtl. Corp., 113 P.3d 668, 671 (Alaska 2005).  

                                                                                                                                                         



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

                                                                                                                                               



                                                                                      -12-	                                                                               7516
  


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

explicitly identifies the issues for hearing, and the issue for hearing was "Merits of                                                                                                                                                       



Provider's 3/23/2018 Workers' Compensation Claim." UPT contends that asking for "a                                                                                                                                                            



ruling   on   the   merits   of   a   claim   means   asking   for   payment   of   benefits  despite   a  



controversion being in place" and that seeking a ruling on the merits was consistent with                                                                                                                                               



not challenging the controversion.                                                                 



                                      The Board's hearing regulation provides that unless the Board "determines                                                                                                    



that unusual and extenuating circumstances exist, the prehearing summary . . . governs                                                                                                                                    

                                                                                                                   22      The State did not ask the Board to consider  

the issues and the course of the hearing."                                                                                                                                                                                  

whether unusual and extenuating circumstances existed,23  so the prehearing summary  

                                                                                                                                                                                                                          



controlled the hearing issues.   We agree with UPT: The Board reasonably used the  

                                                                                                                                                                                                                                          



August prehearing summary to identify the merits of UPT's claim as the subject of the  

                                                                                                                                                                                                                                           



hearing, because it was the only prehearing summary to identify an issue for hearing.  

                                                                                                                                                                                                                                                       



                                      The parties' fundamental dispute, however, is what "Merits of [UPT's]  

                                                                                                                                                                                                                            



3/23/2018 Workers' Compensation Claim" encompasses.  The State contends that UPT  

                                                                                                                                                                                                                                       



 stipulated  it  was  not  challenging  the  controversion  at  the  July  prehearing,  thereby  

                                                                                                                                                                                                                              



                   22                 8 AAC 45.070(g).      



                   23                 The State argues here that the Board "erred by failing to make an exception                                                                                                        



for the unusual circumstances of this case, as contemplated in 8 AAC 45.070(g)."  But  

                                                                                                                                                                                                                                         

the State never asked the Board to determine whether such circumstances existed.                                                                                                                                                       The  

regulation does not require the Board sua sponte to consider whether there are unusual                                                                                                                                        

circumstances.  



                                                                                                                                                                                                                                 

                                      In its reply brief, the State analogizes the Board's failure to sua sponte  

                                                                                                                                                                                                                                    

consider unusualand extenuating circumstancesto theBoard's action in Weaver v. ASRC  

                                                                                                                                                                                                                                         

Fed. Holding Co., 464 P.3d 1242 (Alaska 2020).  Nothing in  Weaver resembles this  

                                                                                                                                                                                                                                  

issue.  The attorney in  Weaver objected at the outset of the hearing, before the Board  

                                                                                                                                                                                                                         

heard testimony, to the use of medical reports authored by doctors whom the employer  

                                                                                                                                                                                                                                               

had not produced for cross-examination as required under the Board's regulation. Id. at  

                                                                                                                                                                                                                                    

 1256.  The Board did not rule on the objection but required the parties to submit briefs  

                                                                                                                                                             

on the evidentiary issue after the hearing was over.  Id.  



                                                                                                                    -13-                                                                                                              7516
  


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

removing the controversion from consideration at the hearing.                                                                                      At oral argument before                    



us the State questioned the Board's power "to raise issues not raised by the parties,"                                                                                                   



asserting that the Board improperly raised the issue of the controversion's validity. UPT                                                                                                         



emphasizes that it sought payment for its services, making the Board's interpretation of                                                                                                                



the prehearing summaries reasonable.                                                       



                                We   begin   our   analysis   with   a   brief   overview   of   relevant   workers'  



compensation principles. Workers'                                                   compensation benefitsarepayablewithoutan                                                                  award  

                                                                                                                           24      The controversion notifies the  

unless an employer files a notice of controversion.                                                                                                                                                  



employee and other interested parties why the employer contests its liability, thereby  

                                                                                                                                                                                           

allowing a possible claimant to determine whether to file a written claim.25                                                                                                       The Board  

                                                                                                                                                                                              



may order payment of controverted benefits, but it must first determine a claimant's  

                                                                                                                                                                                  

                                                 26       As  the  Commission  recognized  here,  when  medical  care  is  

entitlement  to  them.                                                                                                                                                                                  

                                    



contested the Board must decide whether the treatment is reasonable and necessary and  

                                                                                                                                                                                                    

is related to the work injury.27  

                                                    



                                The legislature intended that the Act be construed "to ensure the quick,  

                                                                                                                                                                                              



efficient, fair, and predictable delivery of . . . medical benefits to injured workers at a  

                                                                                                                                                                                                          



reasonable cost to . . . employers" and that "workers' compensation cases shall be  

                                                                                                                                                                          



                24             Harris   v.   M-K   Rivers,   325   P.3d   510,   518  (Alaska   2014)   (construing  



AS 23.30.155).   



                25              See  Vue  v.  Walmart  Assocs.,  Inc.,  475  P.3d  270,  286  (Alaska  2020)  

                                                                                                                                                                                              

("Controversions thus give notice of disputed issues, which an employee can use to  

                                                                                                                                                                                                        

evaluate whether to pursue a claim." (citation omitted)).  

                                                                                                              



                26              See AS 23.30.110(e) (authorizing Board to reject claim or award benefits).  

                                                                                                                                                                                       



                27              AS 23.30.010(a), .095(a); see also Bockness v. Brown Jug, Inc., 980 P.2d  

                                                                                                                                                                                                  

462,  466  (Alaska  1999)  (construing  Act  as  requiring  employers  to  pay  only  for  

                                                                                                                                                                                                     

reasonable and necessary medical care).  

                                                                                  



                                                                                                  -14-                                                                                           7516
  


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

decided on their merits except where otherwise provided by statute."                                                             28  Moreover, the   



Act authorizes the Board to adopt procedures for claims and mandates that "[p]rocess                                                          



                                                                                                                                                           29  

and procedure" in workers' compensation be "as summary and simple as possible."                                                                                 



                                                                                                                                                 

                         The Board's regulation about prehearings allows the Board or its designee  



                                                                                                                                              

to  "exercise  discretion  in  making  determinations  on"  a  list  of  issues,  including  



                                                                                                                                             

"identifying and simplifying the issues," "amending the papers filed," and "accepting  

                                                                                                                                                      30  By  

stipulations . . . that may avoid presenting unnecessary evidence at the hearing." 



its terms the regulation does not give the parties free rein to remove issues from the  

                                                                                                                                                           



Board's consideration:  the parties' actions are subject to the Board's or its designee's  

                                                                                                            



discretion. The July prehearing summary does not indicate that UPT amended its claim,  

                                                                                                                                                      



nor does it show the Board designee's acceptance of an express stipulation to limit the  

                                                                                                                                                           



hearing issue to a narrow legal question that would not resolve the medical care's  

                                                                                                                                                     



compensability.  

                               



                         We have recognized that the Board "has a duty similar to that of courts to  

                                                                                                                                                              

                                                           31      The  State  necessarily  contends  that  at  the  July  

assist  unrepresented  litigants."                                                                                                                      

                                         



prehearing UPT unambiguously abandoned consideration of the compensability of the  

                                                                                                                                                            



care it provided.  But nothing in the July prehearing summary suggests that the Board's  

                                                                                                                                                   



designee  either  explained  to  UPT  that  its  statement  about  the  controversion  might  

                                                                                                                                                      



            28           AS  23.30.001(1),  (2).  



            29           AS  23.30.005(h).  



            30           8  AAC  45.065(a).  



            31           Bohlmann   v.  Alaska   Constr.   &  Eng'g,  Inc.,   205 P.3d   316,   320   (Alaska  



2009).  



                                                                             -15-                                                                            7516  


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

remove the services' compensability from the Board's consideration                                                                                                                             32 or exercised his   



discretion to remove compensability as a hearing issue.                                                                                                            Indeed nothing in the July                                        



prehearing summary identified an issue for hearing.                                                                                                      UPT's subsequent affidavit of                                                     



readiness for hearing told the Board it was "fully prepared for a hearing on the issues set                                                                                                                                                



forth in the Workers' Compensation Claim(s) . . . Dated 3/23/18."  That claim was for     



"Medical Costs" as well as interest and penalty.  And the August prehearing summary                                                                                                                                     



then identified the hearing's subject as the merits of UPT's claim.                                                                                                                       



                                     Black's Law Dictionary defines "merits" as "[t]he elements or grounds of                                                                                                                               



a claim or defense; the substantive considerations to be taken into account in deciding                                                                      

                                                                                                                                               33  TheBoard reasonably interpreted  

a case, as opposed to extraneous or technicalpoints."                                                                                                                                                               



the only prehearing conference summary identifying the hearing issue as requiring it to  

                                                                                                                                                                                                                                           



consider the substantive elements of UPT's claim for compensable medical care.  The  

                                                                                                                                                                                                                                      



Commission correctly summarized those substantive elements as "determin[ing] if the  

                                                                                                                                                                                                                                          



treatment was  reasonable and necessary for the work injury."   Because the State's  

                                                                                                                                                                                                                              



controversion, based on the EME report, contended that the care was not related to the  

                                                                                                                                                                                                                                          



work injury, the Board was required to evaluate the EME report in order to determine  

                                                                                                                                                                                                                      



whether the care was compensable and the State was liable for the controverted services.  

                                                                                                                                                                                                                          



                                     The process the State advocates - involving piecemeal litigation and  

                                                                                                                                                                                                                                       



multiple hearings for this limited claim - is not "as summary and simple as possible"  

                                                                                                                                                                                

as the Act requires.34  And the State's interpretation of the prehearing process ignores the  

                                                                                                                                                                                                                                          



                   32                 Cf. id.          at 320-21 (holding that Board failed to provide adequate assistance                                                                                            



to   self-represented   claimant   by   not   advising   him   about   calculating   deadline   after  

employer misstated deadline).                            



                   33                Merits, BLACK 'S  LAW  DICTIONARY  (11th ed. 2019).                                                                             

                                                           



                   34  

                                                

                                     AS 23.30.005(h).  



                                                                                                                   -16-                                                                                                             7516
  


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

                                                                                           35  

Board's role in investigating claims,                                                           assisting self-represented litigants, and providing                                                 



prompt resolution of workers' compensation disputes.                                                                                       Like any adjudicator, the Board                                   



has an interest in deciding disputed claims promptly and thoroughly, without the need  

                                                           36    Its actions here were consistent with that interest and with the  

for numerous hearings.                                                                                                                                                                                               



Act's directive that claims be decided on their merits.  We agree with the Commission  

                                                                                                                                                                                            



that the Board  acted reasonably  and  not arbitrarily in  interpreting  and  applying  its  

                                                                                                                                                                                                                      

regulations.37  



                 B.	              The   Board   Did   Not   Err   In   Taking   Administrative   Notice   Of   The  

                                  Guides' Statement About Chronic Muscle Strain.                                                                      



                                  In   its   decision   the   Board   took   administrative   notice   that   the   Guides  



"recognizes a diagnosis of 'Non-specific chronic recurrent neck pain (also known as                                                                                                                



chronic   strain/sprain   .   .   .   chronic   whiplash,   etc.)'   can   be   the   basis   of   a   permanent  



impairment."    The Board gave less weight to the EME report because the doctors'                                                                                                                     



"opinion that there was no such thing as a chronic muscle strain conflicts with the fact                                                                                                                           



                                                                                                                                                                                                                     

the American Medical [Association] recognizes the diagnosis." The State argues that the  



                                                                                                                                

Board violated its due process rights by so doing.  



                 35               See, e.g., AS 23.30.135(a) ("The board may make its investigation . . . in                            



the manner by which it may best ascertain the rights of the parties.").                                                                                



                 36               See, e.g., Pool v. City of Wrangell, AWCB Dec. No. 99-0117 at 5 (May 25,  

                                                                                                                                                                                                                     

 1999) ("We disfavor multiple hearings, based on judicial economy.").  

                                                                                                                                                   



                 37               Because the Board correctly identified the hearing issue, we do not address  

                                                                                                                                                                                                          

the State's argument that the Board erred in requiring it to file medical records in its  

                                                                                                                                                                                                                      

possession. Medical records, particularly those discussed in the EME report, are clearly  

                                                                                                                                                                                                            

related  to  the  compensability  of  the  care  UPT  provided  to  the  employee.                                                                                                                                 See  

                                                                                                                                                                                                                  

AS 23.30.095(h) (requiring all parties to file with the Board medical records "relating  

                                                                                                                                                                                                      

to the proceedings" in their possession or control).  

                                                                                                           



                                                                                                         -17-	                                                                                                  7516
  


----------------------- Page 18-----------------------

                             Although the State is not a "person" that can assert due process rights                                                                          



                                                                38  

 against another State agency,                                                                                                                                     

                                                                     the State as an employer is entitled to the procedural  

                                                                                                                                                                            39    The  

                                                                                                                                                                                  

                                                                                                                                                   

protections afforded other employers under the Act and the Board's regulations. 



AlaskaAdministrativeProcedureAct(APA),whichapplies to Board adjudication unless  

                                                                                                                                                                             

the Act specifies otherwise,40  includes a provision for "official notice" that is akin to  

                                                                                                                                                                                      

judicial notice and parallels the Board's actions here.41  

                                                                                                                       



                             Alaska Statute 44.62.480 allows an administrative agency to take official  

                                                                                                                                                                           



notice "either before or after submission of the case for decision, of a generally accepted  

                                                                                                                                                                        



technical or scientific matter within the agency's special field, and of a fact that is  

                                                                                                                                                                                      



judicially noticed by the courts of the state."  Alaska Evidence Rule 201(b)(2) provides  

                                                                                                                                                                        



that a judicially noticed fact must be "capable of accurate and ready determination by  

                                                                                                                                                                                     



resort to sources whose accuracy cannot reasonably be questioned."  The APA requires  

                                                                                                                                                                         



the agency to inform the parties "of the matters to be noticed" and further provides, "A  

                                                                                                                                                                                    



party present at the hearing shall, upon request, be given a reasonable opportunity to  

                                                                                                                                                                                      



               38            South Carolina v. Katzenbach                                    , 383 U.S. 301, 323-24 (1966) (holding that                                          



 a state is not a "person" for purposes of Fifth Amendment's Due Process Clause);                                                                                            Kenai  

Peninsula Borough v. State, Dep't of Cmty. &Reg'l Affairs                                                                    , 751 P.2d 14, 18-19 (Alaska                 

 1988) (holding that a borough is not a "person" that can assert due process rights under                                                                                     

Alaska Constitution).   



               39            See  AS  23.30.001(4)  (showing  legislative  intent  that  parties  to  Board  

                                                                                                                                                                            

proceedings be "afforded due process"); cf. Kenai Peninsula Borough, 751 P.2d at 19  

                                                                                                                                                                                     

 ("[T]he only procedural rights to which the Borough is entitled are those bestowed by  

                                                                                        

 statute.").  



               40            AS 44.62.330(a)(12).  

                                      



               41            AS 44.62.480.  

                                      



                                                                                         -18-                                                                                  7516
  


----------------------- Page 19-----------------------

refute the officially noticed matters by evidence or by written or oral presentation of                                                                                         

authority.   The agency shall determine the manner of this refutation."                                                                         42  



                            The State contends it was deprived of "an opportunity to confront the  

                                                                                                                                                                              



information" the Board noticed, but AS 44.62.480 puts the onus on the parties to seek  

                                                                                                                                        



"a reasonable opportunity to refute the officially noticed matters."  The State sought  

                                                                                                                                                                      



neither reconsideration nor modification of the final decision.  The Board did not take  

                                                                                                                                              



administrative notice that chronic whiplash was a valid medical diagnosis; it merely took  

                                                                                                                                                                            



notice that this diagnosis is included in a reference the Board is required to use.  It is not  

                                                                                                                                                                              



unreasonable for the Board to consult a reference the legislature adopted for certain  

                                                                                                                                                                      

medical determinations under the Act.43  

                                                                                      



                            TheGuidesincludes"[n]on-specificchronic, or chronicrecurrentneck pain  

                                                                                                                                                                            



(also known as chronic sprain/strain, . . . chronic whiplash, etc.)" in a table related to  

                                                                                                                                                                

cervical spine impairments.44                                  We have previously indicated that the Board can rely on  

                                                                                                                                                                               

                                                                                       45    recently  clarifying  that  "administrative  

its  experience  when  deciding  a   case,                                                                                                        

                                                                           



adjudicators' expertise gained from repeated exposure to information in adjudications  

                                                                                                                                                         

can support conclusions made fromthe evidence presented in a specific case."46  Because  

                                                                                                                                                                    



AS  23.30.190  has  since  1988  required  the  Board  to  use  the  Guides  when  making  

                                                                                                                                                                    



              42            Id . (emphasis added).        



              43            Cf. Adamson v. Municipality of Anchorage                                                 , 333 P.3d 5, 21 (Alaska 2014)                     



(rejecting litigant's attempt to attack legislative finding about occupational disease).                                                                     



              44            GUIDES, supra note 2, at 564.  

                                                                                 



              45            Fairbanks N. Star Borough v. Rogers & Babler, 747 P.2d 528, 533-34  

                                                                                                                                                                     

(Alaska 1987).  

                  



              46            Rusch v. Se. Alaska Reg'l Health Consortium, 453 P.3d 784, 801 (Alaska  

                                                                                                                                                                    

2019).  



                                                                                      -19-                                                                                7516
  


----------------------- Page 20-----------------------

                                              47  

impairment determinations,                       we have little doubt the Board panel was familiar with the                                 



Guides.    And because the APA specifically permits an agency to notice a fact "after                                                  

                                                                48   the Board gave the State the same statutory  

submission of the case for decision,"                                                                                            



procedural protections afforded to all litigants.  

                                                                



                      Weagreewith theCommissionthattheBoardappropriatelycited and relied  

                                                                                                                                       

on a statement from the Guides when evaluating the EME report.49  We find no violation  

                                                                                                                                  



of any procedural regulation or any abuse of discretion in the Board's procedural rulings.  

                                                                                                                                    



           C.         Any Error In Failing To Join The Employee Formally Was Harmless.  

                                                                                                                               



                      The State asserts that the Board committed reversible error in failing to join  

                                                                                                                                          



the employee to UPT's claim because the State views the employee as a necessary party  

                                                                                                                                        



to the claim. UPT argues that the State waived this argument by failing to raise it before  

                                                                                                                                      



the Board and, in the alternative, that any error was harmless because the Board gave the  

                                                                                                                                            



employee notice, she participated in the proceedings, and the State had the opportunity  

                                                                                                                             



to cross examine her.  The State replies that it raised the issue at the first opportunity  

                                                                                                                             



after its importance became apparent.  

                                                                



                      The Commission concluded that joinder was not necessary, but it did not  

                                                                                                         



address the Board's regulation providing that "a person other than the employee filing  

                                                                                                                



           47         Ch.  79,  §  34,  SLA   1988.  



           48         AS  44.62.480.  



           49         While  it  is  unclear  whether  the  State  appealed  the  Commission's  conclusion  



that   substantial   evidence   supported   the   Board's   decision,   our   review   of   the   record  

persuades us  that the Commission did not err in so finding.  We independently review  

a  Commission  decision  that  substantial  evidence supports  the  Board's  findings  of  fact  

by  independently  reviewing  the  record  and  the  Board's  findings.   Humphrey  v.  Lowe's  

Home  Improvement   Warehouse,  Inc.,  337  P.3d   1174,   1178  (Alaska  2014).   



                                                                     -20-                                                              7516
  


----------------------- Page 21-----------------------

                                                                                                                                                                                                                                           50  

a   claim shall                                                join  the   injured   employee   as   a   party."                                                                                                                                     Under   this   regulation   UPT  



presumably was required to join the employee, which it failed to do.                                                                                                                                                                                                                             However the State                                          



does not offer any persuasive argument explaining why lack of joinder was reversible                                                                                                                                                                                                                                                  



error,   and   we   note   that   the   State   acquiesced  in  the   employee's   dismissal   from the   



Commission appeal.                                                                       



                                                         We conclude that any error in failing to join the employee was harmless                                                                                                                                                                                                          



because the Board gave the employee notice of the claim when it was filed, the parties                                                                                                                                                                                                                     



 served her with many documents, and she participated in prehearing conferences and the                                                                                                                                                                                                                                                                              



hearing itself.                                                Because we can see no prejudice to the State from UPT's failure to                                                                                                                                                                                                                                      



formally join the employee, we decline to reverse the Commission's decision on this                                                                                                                                                                                                                                                                              



basis.  



                             D.                          UPT Waived Appellate Review Of The Stay Order.                                                                                                                                                            



                                                         UPT   cross-appealed   the   Commission's   stay   order,   arguing  that   the  



Commission's failure to consider whether the appeal raised a serious and substantial                                                                                                                                                                                                                                              



question on the merits of the appeal was error. The State contends UPT waived appellate                                                                                                                                                                                                                                                    



review of this issue because UPT did not oppose the stay request and did not brief this                                                                                                                                                                                                                                                                          



issue before the Commission.                                                                                                     



                                                         We agree with the State that UPT waived consideration of this point by not                                                                                                                                                                                                                                 

                                                                                                                                             51   By not opposing the stay or seeking reconsideration  

raising it before the Commission.                                                                                                                                                                                                                                                                              



                             50                           8 AAC 45.040(a).                



                             51  

                                                                                                                                                                                                                                                                                                                                                        

                                                         SeeAdkinsv.Collens,444 P.3d187, 195 (Alaska2019) ("Arguments raised  

                                                                                                                                                                              

for the first time on appeal are generally waived.").  



                                                                                                                                                                                -21-                                                                                                                                                                         7516
  


----------------------- Page 22-----------------------

of the order, UPT did not allow the Commission to consider the points UPT now makes                                                                                                                                                                                                                                                           



                                           52  

on appeal.                                                                                                                                                                                                                                                               

                                                      Additionally, as UPT concedes, the issue is moot.  



V.                          CONCLUSION  



                                                                                                                                                                                                

                                                        We AFFIRM the Commission's decision.  



                            52                          Although we do not decide whether the Commission must evaluate the                                                                                                                                                                                                                                



merits of an appeal when an employer seeks to stay payment of lump-sum benefits, we                                                                                                                                                                                                                                                                         

are troubled by an apparent inconsistency in the Commission's interpretation of the stay                                                                                                                                                                                                                                                                

standard for lump-sum awards.                                                                                                          The current regulation, adopted in 2012,                                                                                                                                          see  Alaska  

Administrative Code, Register 201 (Apr. 2012), omits an evaluation of the merits for                                                                                                                                                                                                                                                                       

stays   of   lump-sum   awards;   its   language   resembles   AS   23.30.125(c),   the   statutory  

subsection   about   stays.     But   a   2014   Commission   decision   interpreted   the   phrase  

"irreparable damage" in AS 23.30.125(c) as including consideration of the merits of the                                                                                                                                                                                                                                                                     

appeal.   See Fluor Alaska, Inc. v. Rodriguez                                                                                                                                           , AWCAC Dec. No. 199, at 6-11 (July 31,                                                                                                                            

2014), http://labor.state.ak.us/WCcomm/memos-finals/D_199.pdf. In                                                                                                                                                                                                                                  Fluor Alaska                                            the  

Commission "construe[d]thephrase'irreparabledamage'inthestatuteas encompassing                                                                                                                                                                                                                                

the[] two components [of the standard in                                                                                                                                Olsen Logging Co. v. Lawson                                                                                                  ] for purposes of                                          

stays of lump sum payments."                                                                                                   Id.  at 11 (discussing                                                                  Olsen Logging Co. v. Lawson                                                                                                  , 832   

P.2d 174, 176 (Alaska 1992)).                                                                                                         Here, the Commission did not evaluate whether the                                                                                                                             

 State's   appeal   raised   a   serious   and   substantial   question  going   to   the   merits,   one  

component of the                                                          Olsen Logging                                                    test.   See Olsen Logging Co.                                                                                            , 832 P.2d at 176.                                                          



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