Opinion
Supreme Court No. S-13046.
March 31, 2010.
Appeal from the Alaska Workers' Compensation Appeals Commission, Kristin S. Knudsen, Chair, Alaska Workers' Compensation Appeals Commission No. 07-008.
Appearances: Kevin J. DeNino, pro se, Edgewood, Washington, Appellant. Michael A. Budzinski, Russell, Wagg, Gabbert Budzinski, Anchorage, for Appellees.
Before: Carpeneti, Chief Justice, Winfree and Christen, Justices. [Eastaugh and Fabe, Justices, not participating.].
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
Entered pursuant to Appellate Rule 214.
I. INTRODUCTION
A teacher in Fort Yukon alleged he had suffered work-related carbon monoxide poisoning after losing consciousness in a cabin he sublet from his school district employer. The school district denied both that the teacher was exposed to excessive carbon monoxide and that the injury, if it existed, occurred in the course and scope of his employment. The Alaska Workers' Compensation Board found that the teacher had not proven he suffered carbon monoxide poisoning. The Alaska Workers' Compensation Appeals Commission affirmed the Board's decision, concluding that substantial evidence in the record supported the Board's finding. Because the Commission correctly concluded that substantial evidence supported the Board's finding, we affirm the Commission's decision.
II. FACTS AND PROCEEDINGS
Kevin DeNino worked for the Yukon Flats School District during the 2001-02 school year, teaching high school science and physical education in Fort Yukon. DeNino rented from the school district a cabin that the school district had leased for teacher housing. The cabin had three propane-fueled appliances: a stove, a dryer, and a water heater. The water heater was vented to a shed attached to the cabin; the propane tank for fueling the appliances was located in the same shed. The cabin also had a heater that used fuel oil.
DeNino left Fort Yukon for winter vacation in December 2001. Before leaving, DeNino turned off the propane but left on the heater with the thermostat set at seventy degrees, as required by his rental agreement with the school district. DeNino returned to Fort Yukon on January 5, 2002.
According to DeNino, he returned from his vacation, entered the cabin, and passed out right away. He immediately regained consciousness, tried to stand up, and passed out again. He cycled from consciousness to unconsciousness four times in a short period. Next, he crawled to his bed, collapsed "for the fifth time and became conscious again very rapidly." He then went to sleep for about an hour. After he woke up, he crawled outside the cabin and felt better. He did not seek medical attention because he thought he was simply exhausted from his trip. At some point after his episodes of unconsciousness, DeNino turned the propane appliances back on.
DeNino also described experiencing a slightly more serious loss of consciousness in late February 2002. DeNino discussed these episodes with one of his fellow teachers; the teacher suggested DeNino's episodes might be attributed to carbon monoxide poisoning. DeNino did not try to see a doctor after the February incident. DeNino also did not try to obtain a carbon monoxide detector, even though he had been told the school district provided one to another teacher who was concerned about carbon monoxide in his cabin.
DeNino also testified that he had another loss of consciousness episode in April 2002. After he regained consciousness, DeNino tried to cook a meal but was out of propane. When he checked the propane, he discovered a leak in the outside line connecting the propane bottle to the house and he asked the school district to repair it. One of the district's maintenance workers replaced the line and "adjusted the regulator on the oven pilot" light. According to DeNino, there was soot on the rug near the oven after the repair, and the maintenance worker told him the regulator had been "wide open." DeNino understood this to mean that "[m]uch more gas was being poured into the cabin than was consumed cleanly."
After the April episode DeNino began researching carbon monoxide poisoning on the internet. His research prompted him to file a report of occupational injury. The school district controverted all benefits soon after DeNino's report of injury, asserting that if any injury occurred it had not been reported in a timely manner and had not happened in the course and scope of DeNino's employment. DeNino continued teaching through the end of the school year.
DeNino later testified that he had experienced flu-like symptoms, headaches, joint pain, muscle pain, "constant fatigue," mood swings, diarrhea, and memory problems beginning in January 2002. He apparently associated these symptoms with chronic carbon monoxide poisoning, but did not consult a doctor in Alaska, choosing instead to see someone in California after the school year was over.
DeNino returned to his home in California after the school year ended. In June 2002 DeNino sought medical attention. Blood work in July 2002 showed normal levels of carboxyhemoglobin, an indicator of carbon monoxide poisoning, but the medical records also stated the chemical tests "would only be useful for acute poisoning." The examining doctor noted DeNino had symptoms of depression and referred him for a psychiatric consultation.
DeNino had been diagnosed with "possible depression" in August 2000, before coming to Alaska to teach.
After he began associating his symptoms with carbon monoxide poisoning, DeNino consulted by e-mail with David Penney, Ph.D., a professor of physiology. Dr. Penney formed the opinion, based on DeNino's answers to diagnostic questionnaires and e-mails, that DeNino's "acute symptoms" were consistent with chronic carbon monoxide poisoning. Dr. Penney conveyed this opinion to DeNino's attorney on August 13, 2002.
On August 29, 2002, an attorney filed a workers' compensation claim on DeNino's behalf, seeking permanent partial impairment (PPI) benefits, medical and transportation costs, and attorney's fees. The school district filed an answer denying DeNino's claim.
The attorney withdrew from representing DeNino in July 2003. DeNino later filed two written workers' compensation claims on his own: the first, dated January 12, 2004, requested the same benefits as the claim filed in August 2002; the second, dated August 28, 2006, requested temporary total disability (TTD) from June 17, 2004, and continuing.
DeNino moved to Washington in 2002, where he taught in the Puyallup schools for about a year and a half. DeNino underwent a pulmonary function test in December 2002, which indicated mild obstructive airway disease. DeNino's pulmonary function "show[ed] little change" from an earlier test. In November 2003 DeNino began treatment with Allenmore Psychological Associates.
DeNino had been diagnosed with "borderline obstructive ventilatory defect" in July 2000, before he came to Alaska to teach.
By January 2004 DeNino began seeing John Diller, M.D., whom DeNino later designated as his attending physician on his written workers' compensation claims. Dr. Diller referred DeNino to Howard Lloyd, Psy.D., for a neuropsychological evaluation. Dr. Lloyd accepted DeNino's contention that he had been overexposed to carbon monoxide and administered a number of tests. Based on the test results, Dr. Lloyd concluded that DeNino showed "relatively mild cognitive deficits" but that his "intellectual functioning, language skills, and visuospatial/perceptual abilities, were unimpaired and were consistent with premorbid expectations." Dr. Lloyd discerned some "evidence of a decline in functioning relative to premorbid expectations" in DeNino's cognitive function and recommended cognitive rehabilitation therapy.
The record contains very few medical records from Dr. Diller's office. Dr. Diller signed a "Medical Report on Mr. Kevin DeNino" dated August 23, 2006, but DeNino indicated that he (DeNino) actually wrote most of the report.
The school district arranged a three-doctor panel for an employer's independent medical evaluation (EIME) of DeNino in October 2004. Each of the EIME doctors concluded DeNino had not suffered carbon monoxide poisoning; all agreed the most likely explanation of DeNino's problems was a psychiatric condition. Dr. Brent Burton, a toxicologist and occupational medicine specialist, concluded that DeNino probably was fabricating his story and his symptoms, but that even if he had lost consciousness in Fort Yukon, it was not the result of carbon monoxide poisoning. Eric Goranson, M.D., a psychiatrist, concluded DeNino most likely suffered from a conversion disorder "and a severe personality disorder," although he could not completely rule out malingering. Larry Friedman, Ph.D., a neuropsychologist, gave DeNino a number of tests. Dr. Friedman noted "evidence of a lack of full and adequate effort" on some of the tests, "no internal coherence" in the test results, and "major inconsistencies between level of performance currently and that previously demonstrated during the evaluation of May 3, 2004." Dr. Friedman characterized DeNino's description of his worsening symptoms as "unusual," stating that "[e]ven a five-month chronic exposure to [carbon monoxide] two years ago would not cause progressive neuropsychological deterioration over the last two years." Dr. Friedman found no evidence of neuropsychological impairment.
In December 2004 DeNino contacted Laura Dahmer-White, Ph.D., a neuropsychologist, to compare Dr. Friedman's and Dr. Lloyd's data and reports. Dr. Dahmer-White gave the opinion that "the neurocognitive problems identified by Dr. Lloyd could be explained solely by psychological factors ([ e.g., d]epression, anxiety, somatoform issues)." She agreed with Dr. Friedman's conclusion that "functional rather than organic factors [were] responsible for Mr. DeNino's current clinical presentation." She told DeNino that psychological factors "may have contributed to some of the increased cognitive deficits in the [October 2004] examination, but there [was] also evidence of response bias suggesting that [he] attempted to present [him]self as more cognitively and psychologically disabled than [he] actually [was]."
Because of the difference of medical opinions, the Board ordered a second independent medical evaluation (SIME) and selected two doctors to examine DeNino. Ronald Early, Ph.D., M.D., a psychiatrist, evaluated DeNino on March 14, 2005. He diagnosed DeNino with depression, anxiety disorder, and a probable mixed personality disorder. Dr. Early found no connection between these diagnoses and carbon monoxide or propane gas. Dr. Early provided an alternative, if speculative, explanation for DeNino's illness, suggesting that DeNino might have fainted as a result of fatigue and anxiety upon his return to Fort Yukon. According to Dr. Early, DeNino's description of events was "more consistent with syncope episodes from adrenergic excess" than with carbon monoxide overexposure.
The other SIME physician was Thomas Martin, M.D., a specialist in toxicology, occupational medicine, and emergency medicine. Dr. Martin made a number of diagnoses, all preexisting DeNino's alleged workplace injury. Dr. Martin wrote, "I can say with confidence that it is more likely than not that Mr. De[N]ino's symptoms did not result from a toxic exposure in his residential cabin in early January 2002 or in the intervening months until May 2002." (Emphasis in original.) Dr. Martin identified a number of "incredible elements" in DeNino's account, including rapidly losing and regaining consciousness, failure to seek medical attention, "his ability to sleep in the cabin" in January after he turned up the thermostat on the heater and lit two pilot lights, and "his failure to collapse again for nearly [two] months after the first exposure without doing anything to address the problem." Dr. Martin concluded that DeNino "did not suffer from acute or chronic carbon monoxide poisoning" or "propane asphyxiation or intoxication"; in his opinion, the events probably "were contrived and originate from his science book readings and/or Internet surfing."
The Board held a hearing on January 11, 2007, to consider DeNino's claim and the school district's petition to dismiss DeNino's claim as time-barred under AS 23.30.110(c). Only DeNino and Dr. Goranson testified in person during the hearing. Dr. Burton testified by deposition. DeNino tried to contact Dr. Diller and Dr. Lloyd to testify by telephone on his behalf, but neither doctor was available when called.
Dr. Goranson testified that he had diagnosed DeNino with a conversion disorder and a mixed personality disorder. He could not absolutely rule out malingering. He explained that DeNino had been cooperative during his appointment, in contrast to most people who are diagnosed with malingering. But Dr. Goranson also noted that DeNino's consistent refusal to consider that he had not in fact suffered carbon monoxide poisoning, even after repeatedly being told otherwise, could suggest malingering.
In his deposition testimony Dr. Burton elaborated on his conclusions that DeNino did not suffer carbon monoxide exposure and that DeNino's story was "most likely contrived." Dr. Burton explained that because carbon monoxide has a half-life of six hours, if DeNino's loss of consciousness episodes had been caused by carbon monoxide, he could not have recovered immediately or even very quickly. According to Dr. Burton, if the cabin air were so contaminated by carbon monoxide as to make DeNino unconscious, DeNino likely would have died because he would not have been able to remove himself from the environment. Dr. Burton noted that an injury to the brain from carbon monoxide overexposure is inconsistent with the type of continuing deterioration DeNino described. Dr. Burton also testified that carbon monoxide generally "diffuse[s] uniformly into a closed space" so that it would be unlikely that a concentrated pool or layer of carbon monoxide would form within the cabin.
DeNino clarified that he believed he had been injured when the regulator on the oven's pilot light was adjusted improperly, resulting in "incomplete combustion of fuel causing carbon monoxide poisoning." He described his symptoms and attributed them to carbon monoxide exposure. To counter Dr. Burton's testimony, DeNino suggested that "[i]f you have oxygen depletion and you have thermodynamics, it's going to push the carbon monoxide up toward the top . . . of the room," concluding that "carbon monoxide [was] not evenly distributed" in the cabin air.
The Board denied DeNino's claims. The Board used the three-step presumption analysis, first deciding that the case presented complex medical issues requiring medical evidence to attach the presumption of compensability, and that DeNino had attached the presumption. It found the school district had rebutted the presumption through the opinions of Dr. Martin and Dr. Burton. The Board then weighed the evidence and decided DeNino had not proven his claims by a preponderance of the evidence. Because the Board rejected DeNino's claims on the merits, it found that the issues raised in the school district's defenses were moot.
DeNino appealed to the Alaska Workers' Compensation Appeals Commission. He claimed that John's Heating Service v. Lamb required the Board to consider some evidence it had rejected, and that because the evidence presented at the hearing was inconclusive, it should have been construed in his favor. He also argued that: (1) the Board violated Alaska Evidence Rule 404 by improperly admitting medical reports attacking his character; (2) the EIME and SIME "reports did not meet the legal definitions of scientific evidence"; and (3) the Board failed to consider all of the evidence when it made its decision.
46 P.3d 1024 (Alaska 2002).
The Commission rejected DeNino's arguments and affirmed the Board's decision. It decided that Rule 404 did not apply because the school district did not offer the doctors' reports "to prove that DeNino engaged in certain conduct at a particular date and time." It then concluded that substantial evidence in the record supported the Board's finding that DeNino had not proven his claim by a preponderance of the evidence. The Commission rejected DeNino's remaining arguments. DeNino appeals.
III. STANDARD OF REVIEW
In an appeal from the Alaska Workers' Compensation Appeals Commission, we review the Commission's decision. We independently review the Commission's legal conclusion about substantial evidence, which "requires us to independently review the record and the Board's factual findings." "Substantial evidence to support factual findings is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" We independently review the Commission's legal conclusion about the Board's exercise of discretion, independently assessing the Board's action. We will conclude an abuse of discretion exists "when, after reviewing the whole record, we are left with a definite and firm conviction" that a mistake has been made. We review the Board's decisions about discovery and admission of evidence for an abuse of discretion.
Barrington v. Alaska Commc'ns Sys. Group, Inc., 198 P.3d 1122, 1125 (Alaska 2008).
Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).
Id. (quoting DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000)).
Bohlmann v. Alaska Constr. Eng'g, Inc., 205 P.3d 316, 318-19 (Alaska 2009).
Dougan v. Aurora Elec., Inc., 50 P.3d 789, 793 (Alaska 2002) (citing Morgan v. State, Dep't of Revenue, 813 P.2d 295, 297 n. 4 (Alaska 1991)).
Id.; Municipality of Anchorage v. Devon, 124 P.3d 424, 429 (Alaska 2005).
IV. DISCUSSION
A. The Commission Correctly Decided that the Board Properly Admitted the EIME and SIME Reports.
DeNino argues the Board erred in admitting the EIME and SIME reports. DeNino never objected to the reports or, as the school district notes, questioned the doctors' qualifications before the Board. The Commission decided that the Board had not erred in admitting the expert reports. We agree.
DeNino first claims that the opinions offered by the EIME and SIME physicians do not qualify as scientific evidence under the standards set out in State v. Coon. But he waived any objection under Coon by failing to make this objection before the Board.
974 P.2d 386 (Alaska 1999).
See Williams v. Abood, 53 P.3d 134, 148 (Alaska 2002) ("[F]ailure to make the appropriate objection during the hearing waives the right to appeal procedural errors.") (citations omitted). Although appellate courts can consider some arguments raised for the first time on appeal, we decline to exercise that discretion because DeNino's Coon challenge depends on new facts and is not closely related to his argument before the Board. See Krossa v. All Alaskan Seafoods, Inc., 37 P.3d 411, 418-19 (Alaska 2001) (citing Arnett v. Baskous, 856 P.2d 790, 791 n. 1 (Alaska 1993)).
DeNino next asserts that the EIME and SIME physicians were "not experts in chronic carbon monoxide poisoning." This assertion has no merit. Dr. Martin and Dr. Burton are medical doctors whose specialities are occupational medicine and toxicology. Dr. Burton testified that in addition to his work as an emergency room physician, as medical director of the Oregon Poison Center he "took calls for consultation from physicians and other health care providers about carbon monoxide exposures or toxicity." Both doctors had training and expertise qualifying them as experts on whose opinions the Board could rely.
DeNino adds that the EIME and SIME physicians "made statements outside their area of expertise," apparently referring to their conclusions about the lack of a possible carbon monoxide source in the cabin that could have caused overexposure. Dr. Burton testified that a physician considering a diagnosis of exposure to a toxic substance tries to find out if there was a potential source of the substance. Both Dr. Burton and Dr. Martin concluded that carbon monoxide overexposure was highly unlikely in part because DeNino could not account for the source of the carbon monoxide that supposedly caused his collapse in January. The doctors' opinions are supported by DeNino's accounts. DeNino stated he turned off the propane before he left for vacation. DeNino told Dr. Martin that upon returning from his vacation, he turned back on the propane and lit the pilot lights.
DeNino also argues here, as he did before the Commission, that the EIME reports violated Alaska Evidence Rule 404 by disparaging him and were "prejudicial to [his] case." The Commission decided that Rule 404 did not require exclusion of the EIME reports because the reports were not offered to show DeNino "engaged in certain conduct at a particular date and time."
DeNino's argument that the Board should have excluded the experts' reports based on Rule 404 is without merit. Because technical rules of evidence do not apply to workers' compensation proceedings, Rule 404 does not apply here. Even if Rule 404 did apply, it would not require exclusion of these reports. Rule 404(a) generally prohibits use of evidence "of a person's character or a trait of character . . . for the purpose of proving that the person acted in conformity therewith on a particular occasion." Neither the school district nor the EIME physicians offered evidence about DeNino's character. Rather the EIME physicians gave their opinions about DeNino's probable diagnoses and whether they might be related to carbon monoxide exposure. The Commission correctly concluded that Rule 404 did not require the Board to exclude the reports. B. The Commission Correctly Decided that Substantial Evidence Supported the Board's Decision.
AS 23.30.135(a); 8 Alaska Administrative Code (AAC) 45.120(e) (2004).
DeNino contends the opinions of the EIME and SIME physicians were not substantial evidence on which the Board could rely to reject his claim. DeNino asserts in part that the Board should have relied on Dr. Diller's report because it was the only one "with the full weight of medical evidence." He also argues that the EIME and SIME reports did not address chronic carbon monoxide poisoning and so could not serve as a basis for denial of his claim. The school district contends the Commission correctly decided substantial evidence in the record supported the Board's decision.
The Board applied the three-part presumption analysis to DeNino's claim. It found DeNino had attached the presumption of compensability. The school district does not challenge this finding.
See Smith v. Univ. of Alaska, Fairbanks, 172 P.3d 782, 788 (Alaska 2007) (citing Bradbury v. Chugach Elec. Ass'n, 71 P.3d 901, 905-06 (Alaska 2003)) (summarizing three-part analysis).
The Board found that the school district rebutted the presumption with the opinions of Dr. Burton and Dr. Martin. DeNino argues the Commission incorrectly decided the school district had presented substantial evidence to rebut the presumption because the EIME and SIME "reports have no reference to chronic carbon monoxide poisoning."
The school district presented substantial evidence rebutting the presumption of compensability. An employer may rebut the presumption by presenting substantial evidence (1) providing an alternative explanation excluding work-related factors as a substantial cause of the disability, or (2) directly eliminating any reasonable possibility that employment was a factor in causing the disability. An employer may rebut the presumption by presenting qualified expert testimony that the claimant's work probably was not a substantial cause of the disability. The Board does not weigh the evidence at the rebuttal stage.
Bradbury, 71 P.3d at 906 (quoting DeYonge, 1 P.3d at 96).
Id. (quoting Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992)) (internal quotation marks omitted).
Stephens v. ITT/Felec Servs., 915 P.2d 620, 625 (Alaska 1996) (citing Veco, Inc. v. Wolfer, 693 P.2d 865, 869-70 (Alaska 1985)).
Here, the Board relied on doctors' opinions that DeNino's alleged work-related injury — overexposure to carbon monoxide — was not a substantial cause of DeNino's disability. They provided an explanation that, if believed, excluded work-related factors as a substantial cause of the disability. Specifically, the EIME and SIME doctors all agreed that any disability DeNino had was related to psychiatric issues, not carbon monoxide exposure. The EIME and SIME doctors also all agreed it was highly unlikely that carbon monoxide exposure caused the events DeNino described.
Once the employer rebuts the presumption of compensability, the employee has the burden of proving the claim by a preponderance of the evidence. The Board found DeNino had not done so, and the Commission decided substantial evidence in the record supported the Board's decision. The Commission was correct. Contrary to DeNino's assertion, Dr. Burton, Dr. Goranson, Dr. Martin, and Dr. Early all eliminated both acute and chronic carbon monoxide exposure as possible causes of DeNino's alleged disability. Dr. Martin, a toxicologist, stated, "I do not think that he suffered from acute and/or chronic carbon monoxide exposure or propane intoxication or asphyxiation." Dr. Early wrote, "[I]n my opinion, on a more probable than not basis, Mr. De[N]ino did not experience any form of carbon monoxide or other toxic fume exposure in Alaska." Dr. Burton said that DeNino "ha[d] no evidence of any medical condition potentially related to an exposure to carbon monoxide." Dr. Goranson said:
Smith, 172 P.3d at 788 (citing Bradbury, 71 P.3d at 906).
There is no causal relationship between either [conversion disorder or mixed personality disorder] and an alleged exposure to carbon monoxide or propane gas. This is on a "more probable than not basis"; and, in my opinion, the likelihood that such an exposure ever occurred is so extremely low as to be virtually nonexistent.
By excluding any exposure as a cause of the disability, the EIME and SIME physicians adequately addressed chronic carbon monoxide poisoning as a cause of DeNino's disability.
Additionally, DeNino argues that (1) the EIME and SIME physicians should not have had the other EIME and SIME physicians' reports and (2) the EIME and SIME physicians' opinions and reports should be discounted because the physicians did not have access to Dr. Diller's report. These arguments are unpersuasive.
The Board was permitted by regulation to send a copy of the EIME reports to the SIME doctors and did not err in doing so. Nothing prohibited the EIME doctors from reading the SIME reports or the other EIME reports. Dr. Diller did not sign his report until August 23, 2006, more than a year after the SIME; the SIME physicians could not have obtained the report before their examinations of DeNino. After Dr. Diller signed his report, DeNino could have called the SIME physicians as witnesses, deposed them, or sent them interrogatories about the report as permitted by Board regulations. He failed to do so. Similarly, DeNino had the opportunity to ask Dr. Goranson about Dr. Diller's report at the hearing, but DeNino chose not to do so. We further note that DeNino is incorrect in arguing that all of the physicians did not have access to Dr. Diller's report; Dr. Burton commented on Dr. Diller's report in his deposition.
8 AAC 45.092(h)-(i) (2004).
DeNino also argues that Beauchamp v. Employers Liability Assurance Corp. required the Board to weigh the evidence in his favor. As the Commission noted, the Beauchamp rule that uncertain or inconclusive medical testimony is to be construed in favor of the applicant does not apply to the conflicting but unequivocal testimony of several experts. The Board was therefore not required to credit Dr. Diller's opinion over the other experts' opinions unequivocally stating DeNino's medical problems were not caused by carbon monoxide exposure. We cannot conclude the Board acted unreasonably in giving more weight to the EIME and SIME physicians' reports than to Dr. Diller's report, which DeNino in large part wrote.
477 P.2d 993 (Alaska 1970).
See Brown v. Patriot Maint, Inc., 99 P.3d 544, 549-50 (Alaska 2004).
AS 23.30.122.
The Commission correctly concluded substantial evidence in the record supported the Board's finding that DeNino had not proven his claim.
C. DeNino's Other Arguments Lack Merit.
DeNino claims the workers' compensation process is inherently unfair when one party is unrepresented. He made a related assertion before the Commission. Yet DeNino does not point to any specific action the Board or Commission took that rendered the process unfair to him.
DeNino specifically contends the school district's arguments that his claim should have been dismissed under AS 23.30.110(c) and that his injury did not happen in the course and scope of employment were prejudicial to his case. The Board concluded the defenses the school district raised were moot because of the Board's decision that DeNino had not been exposed to carbon monoxide. Nothing in the Board's decision indicates the school district's arguments improperly influenced the Board to reject DeNino's claim on the merits, and DeNino provides no evidence of bias.
Cf. AT T Alascom v. Orchitt, 161 P.3d 1232, 1246 (Alaska 2007) (citing Bruner v. Petersen, 944 P.2d 43, 49 (Alaska 1997)) ("Administrative agency personnel are presumed to be honest and impartial until a party shows actual bias or prejudgment.").
DeNino argues that the Board erred in failing to sanction the school district for "grossly violat[ing] the discovery process." At the hearing, DeNino asked the Board to sanction the school district for tardy or incomplete discovery responses. Here, DeNino focuses on the school district's failure to produce a copy of the work order for the April 2002 stove repair, arguing that the work order "would have proven [his] recollection of the events in detail." At the hearing, DeNino agreed to "skip over" his argument about the work order because the Board chair indicated it had no bearing on the case. The work order related to DeNino's request to fix the outside propane line. At the hearing, DeNino abandoned any claim based on propane exposure. DeNino fails to demonstrate how a copy of the work order would be relevant to an appeal related to carbon monoxide overexposure. We therefore reject his argument.
DeNino also specifically asserts the Board "erred in allowing arguments other than those stated in the controversion notice" at the hearing. He suggests the school district should not have been permitted to introduce evidence on the merits of his claim — that he was prepared to argue only about the school district's defenses and "did not properly prepare for any other arguments." But DeNino argued and presented evidence that he had been exposed to carbon monoxide and had consequently suffered medical problems. DeNino had adequate notice of the issues at the hearing and ample opportunity to present his case.
V. CONCLUSION
We AFFIRM the Commission's decision.