text:
    2002 WY 129
    In the Matter of the Worker's Compensation Claim of Mary Ann Miller HOFF, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
    No. 01-128.
    Supreme Court of Wyoming.
    Sept. 4, 2002.

      David A. Drell of Vlastos, Henley & Drell, P.C., Casper, WY, Representing Appellant.
    Hoke MacMillan, Attorney General; Gerald L. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited case conference.

   LEHMAN, Justice.

[¶ 1] This is an appeal from a determination of the State of Wyoming, Office of Administrative Hearings (OAH) denying worker's compensation benefits. We affirm.

ISSUES

[¶ 2] Appellant Mary Ann Mille Hoff (Hoff) sets forth the following issue:

1. Whether the Decision and Order Denying Benefits of the Office of Administrative Hearings was arbitrary, capricious and an abuse of discretion, otherwise not in accordance with law and, furthermore, not supported by substantial evidence.

Appellee State of Wyoming ex rel. Wyoming Worker's Compensation Division (Division) phrases the issue:

The Hearing Examiner assigned greater weight to the medical opinion of Dr. Pitzer than to the opinions of Dr. Delgadillo and Dr. Narotzky. Was that assignment contrary to the overwhelming weight of the evidence?

FACTS

[¶ 3] Hoff sustained a work-related injury on July 25, 1999. She received primarily chiropractic care and consulted with a neurosurgeon. Initially, claims for medical care and temporary total disability were submitted to and paid by the Division. However, on May 15, 2000, the Division issued a Final Determination wherein it denied all claims that were submitted by Hoff after August 31, 1999. This denial was based on a conclusion that all claims after August 31, 1999, were not work related as the work injury of Hoff was resolved, and treatment after August 31, 1999, was for an underlying chronic cervical spine problem experienced by Hoff which affected the neck and right shoulder area unrelated to the work injury.

[¶ 4] Hoff appealed this determination, and a contested case hearing was held before the OAH. The OAH upheld the decision of the Division. Hoff then filed a petition for review before the district court, and this matter was certified directly to this court for appellate review.

STANDARD OF REVIEW

[¶ 5] Our standard of review when reviewing administrative agency action was recently clarified in the case of Newman v. State ex rel. Workers' Safety and Compensation Div., 2002 WY 91, 49 P.3d 168 (Wyo. 2002). Judicial review of an agency action is directed by Wyo. Stat. Ann. § 16-38-114.

[T6] In appeals where both parties submit evidence at the administrative hearing, Newman mandates that appellate review be limited to application of the substantial evidence test. Newman, 2002 WY 91, 1 22, 49 P.3d 168. This is true regardless of which party appeals from the agency decision. In addition, this court is required to review the entire record in making its ultimate determination on appeal. Newman, at T 19 and 11 24-26.

[¶ 7] The substantial evidence test to be applied is as follows:

In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. It is more than a sceintilla of evidence.

Newman, at 11 12 (quoting State ex rel. Workers' Safety and Compensation Div. v. Jensen, 2001 WY 51, ¶ 10, 24 P.3d 1133, ¶ 10 (Wyo.2001)).

[18] Even when the factual findings are found to be sufficient under the substantial evidence test, Newman further concludes this court may be required to apply the arbitrary-and-capricious standard as a "safety net" to catch other agency action which prejudiced a party's substantial right to the administrative proceeding or which might be contrary to the other WAPA review standards. A purely demonstrative listing is provided of situations which could warrant the consideration of the arbitrary-and-capricious standard in addition to the substantial evidence test. Newman, at 128. However, this appeal presents no such unique cireum-stances.

DISCUSSION

[¶ 9] Hoff generally argues that the decision of the OAH is not supported by substantial evidence. First, Hoff asserts that reliance by the OAH on the opinions of Dr. Neil Pitzer is misguided because Dr. Pitzer's opinions were speculative and not supported by substantial evidence. In particular, Hoff argues that the bulk of medical records reviewed by Dr. Pitzer did not deal with cervical spine issues but with other unrelated back problems suffered by Hoff. Hoff also contends that the opinions of Dr. Pitzer are contrary to the opinions expressed by Hoff's treating physicians. Finally, Hoff asserts that she submitted adequate evidence to meet her burden of proof that the work accident caused her injuries and/or materially aggravated a preexisting condition. Therefore, Hoff argues she is entitled to worker's compensation benefits.

[¶ 10] Hoffs initial argument is that the OAH erred in finding Dr. Pitzer's opinions more credible than the opinions of Dr. Mare Delgadillo and Dr. Robert A. Narotzky. Indeed, in the Order Denying Benefits entered by the OAH in this case, the hearing examiner stated:

8. In weighing the medical evidence, this Office finds Dr. Pitzer's testimony more credible than Dr. Narotzky. In making his medical opinion, Dr. Narotzky indicates that he reviewed information and his clinic notes, however there is no indication as to what information was review [sic] by him. Dr. Pitzer reviewed extensive medical records and chiropractic records which support his opinion that Hoff's neck and right shoulder problems after August 30, 1999 are the result of her chronic cervical spine condition and not the July 25, 1999 work injury.[]

[¶ 11] Review of the record discloses that Hoff was involved in a work-related injury on July 25, 1999, when a chair rolled in front of her causing her to twist but not fall. On July 31, 1999, Hoff indicated in her Employee's Report of Injury that she had injured both her neck and lower back in this incident and that she had previously injured these areas of her body outside of work. In addition, at the hearing Hoff testified that at the time of the accident she was primarily concerned with an injury to her lower back as she was then recuperating from a recent surgery to that area of her body.

[T12] Dr. Pitzer was retained by the Division to perform a medical record review because the Division had concerns that Hoff had a history of considerable preexisting problems. As a basis for his report, Dr. Pitzer was supplied with extensive medical records to review from the Division. Dr. Pitzer detailed that Hoffs medical records showed that she was extensively treated due to a motor vehicle accident in June of 1994 where she incurred lumbar spine pain. X-rays at that time showed multiple level degenerative dise disease and, in December of 1995, Hoff submitted to an L4 through S1 fusion. In August of 1996, Hoff received a surgical revision of the graft site at the right iliac crest and, in December of 1997, repair of the right iliac crest musculature. Hoff then obtained prolotherapy and injections in October of 1998 to the right iliac crest area and had the hardware - removed concerning her fusion in April of 1999.

[¶ 13] Dr. Pitzer also indicated that he had reviewed extensive chiropractic notes apparently made by Dr. Delgadillo. These notes, from April through August of 1998, referred to 12 sessions of chiropractic treatment that Hoff received primarily for neck and shoulder pain. Trigger points likewise were established at this time on the right side. These notes also related another automobile accident that Hoff was involved in on October 30, 1998. From that time through June of 1999, Hoff had 17 additional chiropractic treatments, again substantially involving the right neck and right shoulder. In early 1999, Hoff also experienced migraine-like headaches.

[¶ 14] Dr. Pitzer further identified that x-rays taken in April of 1999 showed degenerative changes on multiple levels in Hoff's cervical spine. A cervical MRI, taken in August of 1999 after Hoff's July 25, 1999 work injury, indicated dise changes including midline bulging and spinal canal narrowing at C3 through CT levels. However, there were no comments on any acute changes suffered by Hoff. Dr. Pitzer also pointed out the findings of Dr. Narotzky during his examination of Hoff, most notably that Hoff had no evidence of radiculopathy. Finally, Dr. Pitzer recognized from his review that both Dr. Narotzky and Dr. Delgadillo had recommended only continuing conservative treatment for Hoff.

[¶ 15] Dr. Pitzer additionally reviewed medical records from the Wyoming Medical Center which made reference to a September 21, 1998 fall down some stairs experienced by Hoff. Notes of Dr. Delgadillo from the period of August 13, 1999, to January of 2000 showed at least 47 chiropractic sessions for headaches, neck and. shoulder pain and trapezius symptoms. Dr. Pitzer concluded that the July 25, 1999 work injury may have resulted in some mild aggravation of Hoffs cervical spine symptoms but felt Hoff was receiving treatment under the Wyoming Workers' Compensation system for a chronic problem which was not related to that work injury. In particular, while Dr. Pitzer opined that limited chiropractic treatment of eight to twelve sessions would have been adequate to address any such aggravation, acknowledged that a few sessions of physical therapy were in order, and agreed that the MRI and x-rays taken were reasonably related to the work injury, he ultimately determined that any additional treatment received by Hoff was not related to her work injury but to an established chronic cervical degenerative spine problem effecting her neck and right shoulder area. This opinion was appropriately based on the above-referenced medical history gleaned by Dr. Pitzer from review of Hoffs medical records and characterization that the work injury was a low speed, whiplash type injury without any head trauma or particular neck trauma. Moreover, Dr. Pitzer stated that any of the previous events within Hoff's medical history may have caused her ongoing and chronic neck conditions. -

[T16] As ascribed previously, Hoff argues that the bulk of the medical records reviewed by Dr. Pitzer did not deal with cervical spine issues but with other unrelated back problems suffered by Hoff. Certainly, while some of the medical records reviewed by Dr. Pitzer dealt with lower lumbar issues, other medical records dealt specifically with cervical spine related issues which were of direct concern in this manner. Evaluation of those medical records examined by Dr. Pit-zer evidences the thoroughness of his review upon which he based his opinion. Finally, we frankly know of no other means by which an appropriate and complete medical records review may be conducted than upon consideration of the past medical history of the person involved.

[¶ 17] Additional evidence exists in the record to support Dr. Pitzer's conclusions. Medical notations concerning Hoff's visit to the Wyoming Medical Center on August 16, 1999, reflect only a cervical musculoskeletal strain. On that same date, an x-ray examination of Hoff resulted in a conclusion that no significant change had occurred when compared with a previous study conducted on September 21, 1998. Similarly, the cervical area MRI study taken on that day ended in findings that some of the previous problems noted in an MRI taken on March 28, 1991, were unchanged. Additional problems were also established which supported a determination that Hoff suffered chronic cervical degenerative spine problems effecting her right neck area.

[¶ 18] A cervical discography performed on Hoff on November 22, 1999, ordered by Dr. Narotzky, identified a dise with abnormal appearance, a dise space with abnormal appearance with narrowing and abnormal layering as opposed to pooling centrally in the nucleus and contrast leaking. Given these factors, it was found that Hoff had spurring and leaking consistent with an annular degeneration or tearing at the C4-5 plane, diffuse degeneration of the dise and spurring impinging on the thecal sac at the C5-6 level and degenerative arthritic change with contrast spread consistent at the C6-7 area. Correspondingly, it was noted that Hoff had pain during the injection consistent with some but not all of her previous complaints. Dr. Angelo M. Santiago, a specialist in neurology, conducted a neurologic examination and an EMG study on Hoff on December 28, 1999, concluding that there were no remarkable abnormalities and that he was "uncertain as to what could be really causing Ms. Hoff's constellation of symptomatology aside from a cervical musculo-ligamentous strain." Hence, the opinions of Dr. Pitzer were not misguided, speculative, or unsupported by substantial evidence.

[¶ 19] Furthermore, Hoff also contends that the opinions of Dr. Pitzer are contrary to the opinions expressed by Hoff's treating physicians. Nevertheless, review of the record shows upon examination of Hoff on August 30, 1999, and review of the recent cervical x-rays and MRI taken of Hoff, that Dr. Narotzky recognized Hoff had a history of four operations to her lower back and several surgeries to her iliac crest bone graft site to repair a "slipped muscle." Additionally, the doctor noted degenerative changes, spondylo-sis with dise bulging, and a combination of osteophyte formation and dise bulging causing mild canal stenosis and associated neural foraminal stenosis within the cervical area of Hoff. Finally, Dr. Narotzky recognized that Hoff suffered from multilevel disease and no evidence of myelopathy or radiculopathy on exam and recommended only continued conservative treatment.

[¶ 20] Dr. Delgadillo, upon his initial examination of Hoff on August 16, 1999, referenced Hoffs degenerative cervical history upon review of x-rays and made a diagnosis of cervical strain. Later, in his Health Care Provider Initial Report of August 20, 1999, Dr. Delgadillo noted right neck and right arm pain but identified that these body parts had been previously injured by Hoff as a result of a prior automobile accident. He then again diagnosed these injuries as a cervical strain. In a letter written by Dr. Del-gadillo on October 12, 1999, he further recognized Hoff's degenerative disc disease in the cervical area given the x-ray and MRI results obtained. Dr. Delgadillo similarly stated that Hoffs discogram "showed some major problems" involving the C5-6 disc.

[¶ 21] Review of Dr. Delgadillo's treatment notes concerning Hoff for the period of April 14, 1998, through May 4, 2000, indicates problems experienced by Hoff with her right neck, right shoulder and right arm. In particular, the May 12, 1998 notation reflects Hoff was experiencing soreness and stiffness in the right side of her neck and right shoulder and had difficulty in moving her right shoulder because of an exacerbation of old problems. She was also experiencing spasms in the right side of her neck. These difficulties continued into the following month.

[¶ 22] In November of 1998, Dr. Delgadil-lo stated in his notations that Hoff was involved in an automobile accident causing her pain, soreness, stiffness and tenderness on the right side of her neck and spasms in her right side trapezius. In March and April of 1999, Hoff experienced right side neck and right shoulder pain with migraine like pain. She also had a tight right trapezius and shoulder blade with spasms and trigger points.

[¶ 23] Even after the work injury, Dr. Delgadillo referred to further exacerbations to Hoffs difficulties. On October 8, 1999, it was recognized that Hoff experienced a slight exacerbation of unknown origin causing her additional tenderness to the right side of her neck. On October 28, 1999, Hoff was thrown from a chair at work causing her additional problems with her neck. Still, in March of 2000, two separate further exacer-bations to Hoffs right cervical area were noted; one of unknown origin and the other caused by Hoff walking and stepping off a curb.

[¶ 24] During his testimony, Dr. Delgadil-lo explained that he first began seeing Hoff in 1985 for occasional neck pain, headaches and lower back pain. He further confirmed Hoffs 1994 automobile accident and stated that Hoff had fairly involved neck problems that resulted from that accident. Dr. Delga-dillo also attested that Hoff complained of neck related difficulties from approximately October of 1998 through April of 1999 prior to the work related injury.

[T25] The record before us does reflect evidence that is contrary to the ultimate decision made by the OAH. For instance, Hoff testified that the symptoms that she experienced after the work injury were different than those symptoms that she had experienced previous to that event. Dr. Nar-otzky wrote a letter dated November 28, 2000, to Hoffs counsel stating that it appeared that although Hoff had preexisting spondolyosis prior to her work injury, that this work injury caused this previous problem to become symptomatic necessitating treatment with Dr. Delgadillo and himself from the date of injury at least through mid-October of 2000. Additionally, Dr. Delgadillo testified that he concurred with these statements made by Hoff and Dr. Narotzky. However, this evidence is not of sufficient weight to convince us that the determination of the OAH was incorrect. We, therefore, determine that the findings and rulings reached by the OAH were based on substantial evidence and within established law.

CONCLUSION

[¶26] We hold that the record before us provided a rational basis for the hearing examiner's ultimate findings of fact and conclusions of law. As such, we hold that these findings of fact and conclusions of law were not clearly contrary to the overwhelming weight of the evidence.

[¶ 27] The order denying benefits of the OAH is affirmed.

      . Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2001) provides:
      (c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
      (i) Compel agency action unlawfully withheld or unreasonably delayed; and
      (ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
      (A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
      (B) Contrary to constitutional right, power, privilege or immunity;
      (C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
      (D) Without observance of procedure required by law; or
      (E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

      . "For example, the administrative record may be replete with evidence supporting the decision, and yet the agency may have willfully discounted credible evidence, refused to admit certain testimony or documentary exhibits, or failed to provide findings of fact or conclusions of law." Newman, at 1 23.

      . The hearing examiner must have meant to refer to Dr. Delgadillo rather than Dr. Narotzky, as Dr. Delgadillo was the only doctor to testify as a witness at the hearing. Further, Dr. Pitzer did not actually testify, but his medical record review report was submitted as documentary evidence.

      . The medical record review report of Dr. Pitzer was admitted into evidence without objection.

      . Again, each of the documents referred to herein was admitted into evidence without objection.

      . Hoff during her testimony admitted to her extensive prior medical history related to her right neck and right shoulder areas and experienced headaches and to those post-work accident incidences she was involved in which exacerbated her subject cervical related work injuries.

      . The record reflects that Hoff responded that she "did not recall" to numerous fact related questions surrounding the subject work accident and her medical history on cross-examination. Yet, Hoff was able to respond with specificity that she had never previously experienced those difficulties prior to the work accident. Further, Hoff admitted that she had previously spoken to Dr. Narotzky about her workers' compensation related difficulties and that he stated that he would do anything he could to help her with her case. Finally, throughout his testimony, Dr. Del-gadillo often became confused, could not keep his notes in order for reference and stated that his opinion was based exclusively on his review of his own notes. These circumstances, of course, may or may not have been considered in weighing overall credibility.


source: Caselaw Access Project

author: GOLDEN, Justice.

license: Public Domain

text:
    2002 WY 130
    In the Matter of the ESTATE OF Harold S. CHEEK, Jr., Deceased. John Cheek, Appellant (Petitioner), v. Martha Zerbe and David Zerbe, Personal Representatives of the Estate of Harold S. Cheek, Jr., Appellees (Respondents).
    No. 02-30.
    Supreme Court of Wyoming.
    Sept. 4, 2002.

      Jerry A. Yaap of Bishop, Bishop & Yaap, Casper, Wyoming, Representing Appellant.
    James Richard McCarty of McCarty Law Office, Lghaina, HI; Donald R. Winship of Winship & Winship, Casper, Wyoming, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   GOLDEN, Justice.

[¶ 1] John Cheek appeals from a verdict issued after a bench trial denying several petitions protesting various aspects of the probate of an estate. One petition specifically sought to prove a lost will. Finding no grounds to support his alleged errors, we affirm.

ISSUES

[¶ 2] Appellant presents two issues for our review:

A. Whether Appellant was entitled to, a jury trial?
B. Whether the trial court erred in finding that appellant failed to meet the requirements of W.S. § 2-6-207 in establishing a lost will?

Appellees accept this characterization of the issues.

FACTS

[¶ 3] Harold Cheek, Jr., died in 1999. John Cheek is Harold's brother and sole heir at law. After Harold's death, Martha and David Zerbe introduced a will for probate dated 1996 naming them as primary heirs and executors. John Cheek claims that Harold gave him a will dated 1998. Mr. Cheek alleges that he briefly looked over the will when Harold gave it to him and noted that it made him the sole heir and executor of the estate. Mr. Cheek then put the will away someplace and cannot now find it.

[T4] The will dated 1996 was presented by the Zerbes and was admitted for probate. Mr. Cheek filed a Petition to Revoke Probate, Petition to Restrain Personal Representatives, Motion to Stay Further Actions of Executor, Petition for Removal of Personal Representative for Waste and Embezzlement, Petition to Prove Last Will and Testament as Lost, and a Request for Jury Trial. The Request for Jury Trial was stricken upon motion of the Zerbes. The Petition to Restrain Personal Representative and the Motion to Stay Further Actions of Executor were denied after hearing. All other petition demands were denied after a bench trial

DISCUSSION

[T5] As his first issue on appeal, Mr. Cheek argues that the trial court erred in striking his request for a jury trial. Mr. Cheek argues that he was entitled to a jury trial as a matter of law; therefore, our review is de novo. Arch of Wyoming, Inc. v. Sisneros, 971 P.2d 981, 983 (Wyo.1999) ("We review issues of law de novo.")

[T6] Mr. Cheek first invokes the Seventh Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment to the United States Constitution. The problem with this argument is that the Seventh Amendment to the United States Constitution was not incorporated into the Fourteenth Amendment and is not applicable to state court proceedings. "A trial by jury in suits at common law pending in the State courts is not ... a privilege or immunity of national citizenship, which the States are forbidden by the Fourteenth Amendment to abridge." Walker v. Sauvinet, 92 U.S. 90, 92, 23 L.Ed. 678 (1875). See also In re Adoption of KJD, 2002 WY 26, 23, 41 P.8d 522, 528 (Wyo.2002); Matter of GP, 679 P.2d 976, 988 (Wyo.1984).

[17] Mr. Cheek next attempts to invoke W.R.C.P. 38 in support of his argument that he is entitled to a jury trial. W.R.C.P. 88(a) states:

Issues of law must be tried by the court, unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury unless a jury trial be waived, or a reference be ordered. All other issues of fact shall be tried by the court, subject to its power to order any issue to be tried by a jury, or referred.

Mr. Cheek presents a very simple argument. He argues that, essentially, his action is focused on gaining the personal and real property of his deceased brother; the action is therefore an action for "specific real or personal property" within the terms of W.R.C.P. 38(a) and therefore "shall be tried to a jury."

[¶ 8] Unfortunately for Mr. Cheek, his argument skips a critical step. In order to achieve his goals, he either had to get the will that already had been admitted to probate set aside, as he requested in his Petition to Revoke Probate, or he had to prove a lost will that superseded the will admitted to probate, as he requested in this Petition to Prove Last Will and Testament as Lost. Those, along with a petition to remove the personal representative, were the issues before the district court and for which Mr. Cheek sought a trial by jury. There were no "actions for the recovery of money only, or specific real or personal property" and so W.R.C.P. 38 simply does not apply.

[¶ 9] Mr. Cheek's final argument essentially is that he is entitled to a jury trial under common law. A right to a jury trial, even under the federal constitution, is preserved only as it existed at common law. 50A CJ.S. Juries § 8 (1997). At common law, a right to a jury trial is recognized in cases triable at law, while there is no right to a jury trial in cases in equity. See generally Davidek v. Wyoming Inv. Co., 77 Wyo. 141, 154-55, 308 P.2d 941, 946 (1957). This remains the general rule in Wyoming. Hyatt Bros., Inc. ex rel. Hyatt v. Hyatt, 769 P.2d 329, $38 (Wyo.1989) ("[UInder W.R.C.P. 38, purely equitable actions remained triable by the trial court unless it ordered an issue tried to a jury."); True v. Hi-Plains Elevator Machinery, Inc., 577 P.2d 991, 1008 (Wyo.1978) ("The adoption of [W.R.C.P. 88], however, does not alter the long-established precept that cases purely equitable 'in character are triable by the court."); Lellman v. Mills, 15 Wyo. 149, 176, 87 P. 985, 994 (1906) ("The case at bar is one of equitable cognizance, in which a jury was not demandable as a matter or right.").

[¶ 10] Mr. Cheek argues that because he is seeking the recovery of real and personal property, his is an action at law and therefore he is entitled to a jury trial. Again, the critical flaw in Mr. Cheek's argument is that he mischaracterizes his petitions. His petitions were all petitions in a probate proceeding. He did not have any direct action for the recovery of real or personal property. Onee set in the proper context-that of a probate proceeding-it is clear that Mr. Cheek is not entitled to a trial by jury.

[¶ 11] Probate proceedings are not proceedings at law or in equity but rather are unique proceedings. "[UJnder our codes probate proceedings are entirely separate and distinct from actions either at law or in equity." Gaunt v. Kansas University Endowment Ass'n of Lawrence, Kan., 379 P.2d 825, 826 (Wyo.1963). The general rule regarding the right to jury trials in probate proceedings is as follows:

The right to demand a trial by jury in decedent estate administration proceedings was not given by the common law, and is not within a general constitutional guaranty, but exists only when, and to the extent that, it is conferred by statute. Thus, in probate proceedings, there is no constitutional right to jury trial.

50A C.J.S. Juries § 110 (1997) (footnotes omitted). More specifically:

A general constitutional guaranty of the right to a trial by jury does not ordinarily extend to proceedings for the probate or the revocation of the probate of wills, since such proceedings are special in character, belonging at common law to ecclesiastical jurisdiction. Thus, there is no constitutional right to jury trial in a will contest proceeding in probate court or a court of general jurisdiction, and there is generally no right to jury trial in a proceeding for the probate of a will or a will contest proceeding.

Id. at § 111 (footnotes omitted). In short, probate proceedings were unknown under the common law. Therefore, the common law does not provide for the right to a trial by jury in such proceedings.

[T12] We have been given no applicable argument why a jury trial was demandable as of right under the specific facts and circumstances of this case. As such, the trial court had the authority to strike Mr. Cheek's request for a jury trial.

[¶ 13] Mr. Cheek's second issue concerns the sufficiency of the evidence supporting the trial court's denial of his attempt to prove a lost will. Our standard for reviewing the sufficiency of the evidence underlying trial court findings involves examining only the evidence in the record that is favorable to the prevailing party, giving that evidence every favorable inference. Daley v. Wenzel, 2001 WY 80, ¶ 24, 30 P.3d 547, 558 (Wyo.2001). We will not substitute our judgment for the trial court's findings and judgment of the facts unless they are clearly erroneous or contrary to the great weight of the evidence. Ruby Drilling Co., Inc. v. Ratcliff, 994 P.2d 931, 988 (Wyo.1999).

[¶ 14] A lost will must be proven according to the terms of Wyo. Stat. Ann. § 2-6-207 (LexisNexis 2001) as follows:

§ 2-6-207. Proof; lost or destroyed will; court may restrain personal representatives pending disposition.
(a) Whenever any will is lost or destroyed, the district court shall take proof of the execution and validity thereof to establish the same. All the testimony shall be reduced to writing and signed by the witnesses. >
(b) No will shall be proved as a lost or destroyed will unless it is proved to have been in existence at the time of death of the testator, or is shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two (2) credible witnesses.
(c) When a lost will is established, the provisions thereof shall be distinctly stated and certified by the judge, under his hand and the seal of the court, and the certificate shall be filed and recorded as other wills are filed and recorded, and letters testamentary or of administration with the will annexed, shall be issued thereon in the same manner as upon wills produced and duly proved.
(d) If before or during the pendency of an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator or letters testamentary of any previous will of the testator are granted, the court may restrain the personal representatives so appointed from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed will.

Mr. Cheek presents several arguments as to how the evidence he presented complies with the statutory requirements. We, however, need not look beyond one particular eviden-tiary requirement-the requirement under subsection (a) that the execution and validity of the will be proven.

[¶ 15] In the case sub judice, we need not concern ourselves with the exact requirements of the statute because absolutely no evidence was presented that even potentially supports a conclusion that the purported 1998 will was properly executed. While several witnesses testified to either having seen the will or having heard Harold Cheek, Jr., mention the will, no witness testified regarding the valid execution of the will. Mr. Cheek specifically testified that he did not know where the will was executed. No witness had any knowledge concerning the execution of the purported 1998 will.

[¶ 16] The only testimony remotely concerning the validity of the will came from Mr. Cheek and one other witness. Both witnesses testified that they saw the will and checked the signature page and recognized the signature of Harold Cheek, Jr. The one witness, an office assistant of Mr. Cheek, testified she saw "other names on the last page" and that there were notaries on the will. Mr. Cheek testified that "there were witnesses" and "there was a notary." This information is woefully short of proving the valid execution of the purported will under any standard. Given the state of the evidence on the issue of execution, the trial court did not err in ruling that Mr. Cheek failed to prove the existence of a valid will that was lost.

CONCLUSION

[T 17] The trial court did not err in striking Mr. Cheek's request for a jury trial With regard to proving a lost will, no evidence was presented supporting the existence of a validly executed will dated 1998. The petition to prove a lost will was properly denied.

[¶ 18] Affirmed.

      . The Seventh Amendment of the United States Constitution reads as follows:
      In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.
      The Fourteenth Amendment of the United States Constitution reads, in pertinent part:
      No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      . In Wyoming, we have recognized that "[pJro-ceedings for disproving or contesting a will were unknown to the common law. The right of contest is a creature of statute and a contestant has such rights and only such rights as the law gives him." Gaunt, 379 P.2d at 826. Mr. Cheek makes no argument that any provision within the Wyoming Probate Code guarantees him the right to a jury trial, so we will not review that general issue.


author: CARPENETI, Justice. ,

text:
    Bruce Wayne WILLIAMS, Appellant/Cross-Appellee, v. Patrick ABOOD, d/b/a Knik Sweeping Company and Providence Washington Insurance, insurer, Appellees/Cross-Appellants.
    Nos. S-9806, S-9836.
    Supreme Court of Alaska.
    Aug. 16, 2002.

      Charles W. Coe, Law Offices of Charles W. Coe, Anchorage, for Appellant/Cross-Appel-lee.
    Patricia L. Zobel and John D. Harjehau-sen, Delisio Moran Geraghty & Zobel, Anchorage, for Appellees/Cross-Appellants.
    Toby N. Steinberger, Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee State of Alaska, Department of Labor, Workers' Compensation Board.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice. ,

I. INTRODUCTION

Bruce Wayne Williams sustained a knee injury while working as a driver of a street sweeper for Knik Sweeping Company on August 21, 1992. The Workers' Compensation Board resolved several disputed issues; Williams appealed the board's decision to the superior court. Williams appeals several aspects of the superior court's decision affirming the board's rulings, and Knik cross-appeals the decision by the superior court to remand the issue of attorney's fees for Williams's first attorney, Darryl Jones, to the board. We affirm the board in all respects.

II. FACTS AND PROCEEDINGS

A. Facts

On August 21, 1992, Bruce Williams injured his left knee while on the job driving a street sweeper for Patrick Abood, d/b/a Knik Sweeping Company. Immediately after the accident, Williams received emergency care and subsequently began seeing Dr. Robert Gieringer. Williams underwent several arthroscopic surgeries, including a patellectomy and reconstruction on January 20, 1994. During this surgery, Williams's patella was wired together. Knik accepted the workers' compensation claim and provided medical benefits and Temporary Total Disability (TTD) at a rate of $162.89 per week.

Williams's compensation rate was determined using the version of AS 23.30.220(a)(1) in effect at the time of Williams's injury. The compensation rate was based on wage and tax records provided by Williams for 1990 ($5,133.00) and 1991 ($19,758.75), yielding gross weekly earnings of $249.00. Dr. Gieringer found that Williams was medically stable on April 5, 1994 and that he had a Permanent Partial Impairment Rating (PPT) of eighteen percent. Williams was released to return to work, and Knik paid him a lump-sum of $21,098.60 in PPI benefits on April 18, 1994.

Williams changed doctors and started treatment with Dr. David A. McGuire. On May 9, 1995 Williams underwent another surgery to remove the wire around his patella. Knik reinstated TTD benefits effective May 9, 1995. Williams continued to be in pain, and underwent yet another surgery in which Dr. Harold Dunn performed a total knee replacement on March 5, 1997. Williams also underwent interdisciplinary physical rehabilitation and narcotics weaning at the University of Utah from March 1, 1997 to May 7, 1997.

On May 27 Williams was admitted to Providence Alaska Medical Center's mental health unit for suicidal ideation. Williams was released from this facility on June 9, 1997 by his treating psychiatrist, Dr. Cleve R. Shirey. Dr. Shirey diagnosed Williams with major depression, pain disorder, cannabis abuse, iatrogenic narcotic dependency, personality disorder not otherwise specified, several psycho-social and physical problems, and a global assessment of functioning (GAF) rating of seventy. On June 4 there was a teleconference between the parties, their attorneys, and the health-care professionals in charge of Williams's care to coordinate narcotic pain management. Everyone involved agreed to wean Williams off nareot-ies, as much as possible, through a series of "blind" pain cocktail dosages.

Williams hired attorney Darryl Jones to represent him in a variety of claims against Knik. On July 2 the parties entered into a "Partial Compromise and Release" that was approved by the Workers' Compensation Board and signed by Williams and both attorneys. The compromise and release identified disputes between the parties over medical travel expenses, prescription reimbursement, payment for a Jacuzzi, lounge chair, and sauna, penalties for bad faith controversion, and interest. The compromise and release waived Williams's claims for medical benefits, travel expenses, penalties, interest, and frivolous controversion pri- or to July 1, 1997 in exchange for $9,000 plus $1,150 in reasonable attorney's fees.

Also on July 2 Williams and his attorney signed a separate "Release and Settlement Agreement" dealing with issues of bad faith. In the release and settlement, Williams released Knik from all claims of bad faith under statute and tort law for actions through July 2, 1997 in exchange for $11,500 and $1,350 in attorney's fees.

On July 28 Dr. Dunn released Williams to vocational rehabilitation and Knik requested reemployment benefits for Williams under AS 28.30.041. Dr. Dunn prescribed a home gym and physical therapy for Williams on November 11. On December 19 Knik controverted the home gym as excessive due to the prescription of physical therapy and an already-provided exercise bicycle and Jacuzzi. However, Knik subsequently provided the home gym when Dr. Dunn indicated that Williams should be transitioned from formal physical therapy to a home exercise regimen.

On November 21 Williams was treated at Central Peninsula General Hospital by Dr. Robert Ledda after falling on black ice and injuring his back, buttocks, and left knee. However, a report by Dr. Ledda stated that the treatment was of the right knee. Knik received a bill for treatment of the right knee that was not accompanied by a medical ree-ord. Knik controverted the bill, as treatment of the right knee was not related to any employment-related injury.

On February 24, 1998 rebabilitation specialist Robert Sullivan determined that Williams met all the reemployment eligibility requirements in AS 28.30.0411 but recommended that the reemployment benefit file be closed based on two considerations. First, Williams wrote a letter on February 22 declining reemployment benefits and requesting $10,000 in lieu of training. Second, Dr. Shirey, Williams's treating psychiatrist, stated in February 1998 that Williams was unable to be gainfully employed at that time. In response, the Reemployment Benefits Administrator closed the reemployment file and Knik recharacterized Williams's benefits from TTD to Permanent Total Disability (PTD) benefits on March 24.

B. Proceedings

On March 31, 1998 Williams filed a petition with the board requesting a variety of benefits. The issues were amended in a series of prehearing conferences. The board heard Williams's claims and listened to a plethora of witnesses at the hearing on November 5 and 6, 1998, in connection with Williams's compensation claims. Charles W. Coe took over as Williams's attorney for the hearing because Jones was to be a witness at the hearing on the issue of setting aside the compromise and release. The board also heard evidence on the value of services rendered by Jones on behalf of Williams. Specifically, Jones submitted an affidavit prepared by Williams's wife containing a spreadsheet of the hours Jones expended on Williams's claims. Jones also orally supplemented his affidavit during the hearing, submitted a corrected affidavit on November 4, 1998, and filed a third affidavit on November 9. Knik objected to the consideration of the affidavits filed on November 4 and November 9 since the preconference order directed Coe to serve the affidavits no later than October 28.

The board denied and dismissed many of Williams's claims including: that he was entitled to PTD benefits from August 21, 1992 through March 23, 1998; that the compensation rate should be adjusted under AS 23.30.220; that the compromise and release should be set aside; that Knik unfairly or frivolously controverted claims under AS 23.30.155(d) and (0); and that Williams was entitled to additional penalties under AS 23.30.155(e).

The board awarded Williams $6,046 for Coe's attorney's fees plus $570 in costs. Coe was awarded half of the claimed attorney's fees because Williams prevailed on relatively few issues at the hearing. The board found that one-half of the claimed fees was reasonable when taking into account the complexity of the claims, the large number of claims addressed, and the benefit to Williams in the partially successful prosecution of the claims. The board found that full costs were reasonable.

The board also awarded Williams the statutory minimum attorney's fees for Jones's services and $450 for Jones's testimony as a witness. The board did not consider the November 4, 1998 affidavit because it was submitted in violation of the preconference order requiring affidavits to be filed by October 28. The board also did not consider the November 9 affidavit. The board ruled that this affidavit was submitted after the board closed the record for the hearing. Finally, the board found that the listings in the affidavit filed on October 28 were not clear enough to make a well-supported award of fees.

Williams filed a motion for reconsideration, asking the board to reconsider the rulings on the claims that were denied and dismissed and the award of attorney's fees for the services of both Coe and Jones. Williams also argued that he was denied his right to due process because a videotape of the proceedings shows that one of the panel members was asleep during testimony and arguments. Williams does not identify which panel member he claims fell asleep during the proceeding. The board issued an Interlocutory Decision and Order finding that the parties had a full opportunity to present evi-denee at the hearing for the board's consideration. However, the board did retain jurisdiction over the motion for thirty days in order to review the videotape. The board then issued a Final Decision and Order on Reconsideration finding that a review of the videotape showed that all three members of the panel were actively participating in the hearing and that there was no evidence that one member was asleep.

Williams appealed the board's decision to the superior court. He challenged the board's decision regarding the issues of re-characterization of benefits to PTD, a compensation rate adjustment, unfair controversion, additional penalties, and the attorney's fees awarded for both Coe's and Jones's services. In addition, Williams also appealed the board's denial of his motion for reconsideration, claiming that a panel member was sleeping at various times of the proceeding and that the board did not give due consideration to the evidence presented. The superi- or court affirmed the decision of the board on all issues except for the award of attorney's fees to Jones. With respect to Jones's attorney's fees, the superior court held that the board erred in not considering Jones's amendment to his affidavit and his supplemental affidavit. The superior court found that the policy consideration of making attorney's fees fully compensatory and reasonable so that injured workers would be able to find competent counsel necessitated that the board take these affidavits into account. Accordingly, it remanded the matter so that the board could review the late-filed affidavits before formulating its attorney's fee award.

Williams appeals the superior court's ruling. Knik has filed a cross-appeal claiming that the superior court improperly remanded the issue of Jones's fees back to the board for consideration of the late-filed affidavits.

III. STANDARD OF REVIEW

When the superior court acts as an intermediate court of appeal in an administrative matter, we independently review and directly serutinize the merits of the board's decision. In questions of law involving the agency's expertise, the rational basis standard will be applied and the agency's determination will be deferred to so long as it is reasonable. The rational basis standard is applied where the agency's expertise is involved or where the agency has made a fundamental policy decision. We will substitute our own judgment for questions of law that do not involve agency expertise "or where the agency's specialized knowledge and experience would not be particularly probative as to the meaning of the statute. We will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."

Factual findings made by the board are reviewed under the substantial evidence standard. Factual findings will be upheld so long as there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

A compromise and release is interpreted in the same manner as any other contract. We review the interpretation of a contract de movo when the underlying facts are undisputed. However, we review a contract under the substantial evidence standard when the issue is the intent of the parties when forming the contract.

Unless statutory interpretation is required, we review an award of attorney's fees by the board under the abuse of discretion standard. The award of attorney's fees should be upheld unless it is "manifestly unreasonable."

IV. DISCUSSION

A. The Superior Court Erred in Remanding the Issue of Jones's Attorney's Fees for Consideration of the Late-Filed Affidavits.

We consider first Knik's cross-appeal. We do this because it raises a threshold issue that affects our jurisdiction over the entire case. Knik claims on cross-appeal that the superior court erred in remanding the issue of Williams's attorney's fees to the board for consideration of affidavits excluded at the hearing. When a superior court acts as an intermediate appellate court, a decision reversing and remanding an agency ruling for further adjudication is not a final judgment. However, we have the discretion to treat this as a petition for review pursuant to Appellate Rule 402. And we have, in appropriate cases, reached the merits of a case by treating an otherwise premature appeal as a petition for review. We may review a non-final judgment when postponement of review will result in unnecessary expense or delay. Because we conclude below that the superior court erred in remanding this issue, we will treat this appeal as a petition for review in order to avoid unnecessary delay.

The board decided not to consider affidavits filed by Jones on November 4 and November 9, 1998 because they were filed late. On October 14, 1998, the board had issued a prehearing conference order specifically directing that affidavits concerning attorney's fees and costs be filed and served no later than October 28. The board held Jones to the terms of the prehearing order and did not consider the affidavits filed and served after the October 28 deadline. The board did consider Jones's affidavit filed on October 28 but found this affidavit to be largely undecipherable and, to the extent it could be deciphered, inaccurate.

The board held Jones to the prehearing order, which it had the authority to do. We have held that the board has "discretion to exercise reasonable control over its proceedings to ensure the orderly administration of justice." While there is a policy in favor of making attorney's fees in workers' compensation cases fully compensatory, the policy does not relieve an attorney from following the procedural rules for obtaining compensation. Jones filed the second affidavit one day before the hearing and the third affidavit after the hearing was over. No reasons have been offered by Jones or Williams as to the reasons for the late filing. And it hardly seems fair to give the employer one day to look over six years of attorney's fees and then to allow another affidavit after the ree-ord for the hearing has closed. Jones was on notice as to the requirements for filing his affidavit and the board acted within its discretion to hold him to those requirements.

As for the affidavit filed by Jones on October 28, 1998, it contains illegible handwritten notes, it shows no total number of hours expended, and the entries are not in chronological order, among other problems. The board cannot be expected to decipher it. Although the board may not arbitrarily deny attorney's fees, the one affidavit filed in compliance with the board's order is incomprehensible.

In sum, the board did not abuse its discretion in awarding Williams the statutory minimum in attorney's fees for Jones's representation. It was entitled to reject the late-filed affidavits, and the one timely affidavit did not establish the case for more.

B. The Superior Court Did Not Err in Affirming the Board's Decision Denying Williams's Claim for PTD Benefits from August 21, 1992 through March 23, 1998.

Williams claims that he was totally and permanently disabled from the day of the accident. Williams alleges that the board failed to apply to his claims the presumption that injuries are compensable. We disagree.

Under the Workers' Compensation Act, there is a presumption in favor of compensa-bility. We have held that the presumption includes claims for PTD benefits. Williams received benefits for the entire period of August 21, 1992 through March 23, 1998 and the only question is at what point his loss of earning capacity became permanent.

The only evidence Williams provided that he was permanently disabled from the date of injury was his own testimony. However, the board found Williams not to be a credible witness and "[the board has the sole power to determine the credibility of a witness." Also, Williams offered no concrete medical evidence that he was permanently disabled as of the date of his injury. -

Williams's claim that the board failed to apply the statutory presumption to his PTD claim is incorrect. In its Final Decision and Order, the board clearly applied the presumption to Williams's claim. In fact, the board set out the case law behind the presumption in an extended discussion. The board went on to find that Williams did not establish the necessary link for the presumption to attach. Finally, the board assumed that he did establish the link and analyzed the matter as the law requires First, the Board found that prior to Dr. Shirey's evaluation on February 10, 1998, none of Williams's doctors stated that he was permanently disabled and unable to return to work. The Board also found that Williams was released to work on April 5, 1994 by Dr. Gier-inger and released to seek reemployment training on July 28, 1997 by Dr. Dunn. These findings are supported by the record. Finally, there is also various medical evidence in the record to show that, before March 23, 1998, the doctors were optimistic that Williams would not be permanently disabled. The board applied the presumption properly.

C. The Superior Court Did Not Err in Affirming the Board's Decision Denying Williams's Claim for a Compensation Rate Adjustment.

Williams argues that the board erred in denying him a compensation rate adjustment. He claims that the information relied on by the board in determining his compensation rate was inaccurate. Alaska Statute 23.30.220(a) governs the calculation of a compensation rate.

The board relied on Williams's W-2 statements for 1990, 1991, and 1992. Williams argues that his W-2s were an inaccurate predictor of his earning capacity. Williams claims that he worked for Patrick Abood on several jobs in which the wages were not accurately reported to the Internal Revenue Service and that he had additional sources of income. Because Williams believes that the W-2 forms do not accurately reflect his earnings while employed by Knik, Williams states that the board should have used his hourly rate times forty hours per week and then taken his additional income into account. However, there was sufficient evidence for the board to find that Williams's W-2 forms were an accurate predictor of his lost earning capacity.

Williams's W-2s indicate income of $5,133.00 in 1990, $19,758.75 in 1991, and $9,766.75 in 1992. The board found that the earnings reported on his W-2s were consistent with the earnings that Williams reported in his income tax returns and what he reported to his claims adjuster, George Klim. Williams provided no documentation of any additional wages. The board also found that Williams's Employment Security Division records for 1992 show that Williams collected unemployment benefits in 1992 for about six out of the eight months prior to his injury.

The board's findings are supported by substantial evidence in the record. First, Williams's tax returns report the same amounts as reported by Knik on the W-2 forms. Second, George Klim testified at the board hearing that Williams never stated that he had additional sources of income and that, if he had, his rate would have been adjusted accordingly. Williams stated in a form sent to the Department of Labor that his earnings for the two years prior to the injury were $24,892, which is exactly the sum of the income reported on his W-2 forms for 1990 and 1991 as rounded to the nearest dollar. The board's findings are also supported by Williams's Employment Security Division records for 1992 because they show that he had no source of income during that year other than his job with Knik. The only evidence offered to support additional earnings is testimony by Williams, and, as stated above, the board found Williams not to be a credible witness. The board therefore had substantial evidence to find that Williams's W-2 forms were an accurate predictor of his earning capacity.

Williams additionally argues that application of AS 28.30.220(a) led to an incorrect compensation rate, relying on Gilmore v. Alaska Workers' Compensation Board. In Gilmore, we found that the version of AS 23.30.220 in effect at the time of Williams's injury was unconstitutional under the equal protection clause as applied to that case. Former AS 23.30.220(a)(1) required that the gross weekly earnings of an employee present in the labor market for six months or more were to be calculated according to a mechanical formula that took gross wages over a two-year period and divided this sum by 100. This formula was applied regardless of how many weeks the employee actually worked during the period, and Gilmore had actually worked only thirty-nine weeks in the preceding 100. We held that this mechanical application violated Gilmore's equal protection rights because, as applied to him, the benefit level bore no more than a coincidental relationship to the goal of compensating injured employees for their actual loss. In Thompson v. United Parcel Service, we explained our ruling in Gilmore. Thompson was injured two weeks after involuntarily changing from full-time work to part-time work. Under AS 23.30.220(a) her gross weekly earnings were based on her full-time pay because Thompson filed an application for adjustment to increase her compensation rate by having her earnings from her previous full-time job included and her application was granted. Her employer claimed that this change in her status required that the board deviate from the statutory formula used to determine the rate of pay to which an injured party is entitled. We rejected that argument and held that the statutory formula in AS 28.80.220(a) must be used to calculate the employee's gross weekly earnings. We made clear that departure from the statutory formula "must be based on substantial evidence supporting the conclusion that past wage levels will lead to an irrational workers' compensation award." Specifically, there must be substantial evidence that past wages are an inaccurate predictor of loss due to injury. We stated that the inquiry is not to determine whether the statutory application led to a "fair" result, but whether the formula accurately predicted what the employee would have earned had he or she not been injured.

Since Williams is the party asking for a deviation from AS 28.30.210(a), he must present substantial evidence that the use of past wages will lead to an irrational workers' compensation award. Williams cites testimony in support of his claim that he made more than his W-2 forms reflect. However, the testimony cited does not constitute substantial evidence that use of his past wages will lead to an irrational workers' compensation award. Williams cites Patrick Abood's testimony that checks were written out to Williams's girlfriend instead of Williams, but Abood testified that the income reflected in the check was still attributed to Williams in his W-2 forms. Williams claims that he did work around Abood's house that he was paid for, but Abood testified that Williams did the work as a favor to Abood, and Abood never paid Williams for this work. Williams also states that his income from his mobile home business should have been taken into account. However, the supplemental income and loss form filed with the IRS by Williams in 1991 shows that the mobile home business was operating at a loss.

Next, Williams cites the testimony of a friend who also worked for Knik, Daniel Neiginger, to support Williams's claim that he worked more than what was reflected on his W-2 forms. Neisinger testified that he believed that Williams worked more than Neisinger did and that Neisinger's personal income in 1990 was $19,633. Neisinger also testified that Knik made errors in the W-2 form sent to the IRS for Neisinger's earnings in 1990 and 1991 and that Williams did some work around Patrick Abood's house. But the board explicitly found that it could not "accord any substantial weight to Mr. Neisinger's testimony," pointing to documentary evidence that refuted it. Moreover, Neisinger's testimony appears to be mere speculation about what Williams earned while working for Knik; it is not based on firsthand knowledge. The board's decision to discount Neisinger's testimony was not clearly erroneous. The only other evidence offered by Williams is his own testimony.

Williams also claims that the board erred in failing to apply the presumption in favor of compensability to his claim for a compensation rate adjustment. Applying the presumption of compensability would be inconsistent with our holding in Gilmore As discussed above, the board must use the formula in AS 28.30.220(a) to calculate an employee's gross weekly earnings unless there is substantial evidence supporting the conclusion that past wage levels will lead to an irrational workers' compensation award. Here, Williams had the burden of proving that the statute was an inaccurate predictor of his future earnings loss due to injury. Williams did not satisfy that burden. Applying the presumption to a claim for a compensation rate adjustment would be in conflict with the rule requiring substantial evidence to be presented before the board can deviate from the statutory formula. Thus, Williams is not entitled to a compensation rate adjustment under any theory argued.

D. The Superior Court Did Not Err in Affirming the Board's Decision Denying Williams's Request To Set Aside His Partial Compromise and Release.

Williams claims that the board erred in failing to set aside the compromise and release that was entered into on July 2, 1997. A compromise and release approved by the board "is enforceable the same as an order or award of the board and discharges the liability of the employer for the compensation." Williams gives two reasons why the compromise and release should be set aside. First, Williams claims that he was mentally incompetent when he signed the release. Second, Williams claims that the compromise and release does not cover penalties for late payment on medical bills. We discuss these two claims separately.

1. The board did not err in finding Williams mentally competent.

Williams argues that he was so medicated and psychologically unstable at the time he signed the compromise and release that he could not be expected to overcome the pressure put on him by Knik to sign the agreement. The board found, by a preponderance of the available evidence, that Williams was mentally competent at the time he signed the agreement. The board's findings were supported by substantial evidence. Dr. Chandler testified that people who are on oral narcotics for many months, as Williams was, are usually functional and able to make decisions. Dr. Shirey, Williams's treating psychiatrist, testified that Williams was able to handle his own affairs upon his release from the hospital on June 8, 1997. Also supporting the board's findings is the fact that Williams was represented by counsel when he signed the agreement. Williams offers no medical testimony to support the claim that he was mentally incompetent. Therefore, the board did not err in finding Williams mentally competent when he signed the compromise and release.

Williams also claims that Knik procured the compromise and release through duress. Williams generally claims that he did not understand the extent to which he was releasing his claims. In Olsen Logging Co. v. Lawson, we held that the board cannot set aside a compromise and release on the basis of unilateral and mutual mistake grounds. We also stated that a compromise and release, once approved by the board, is very difficult to set aside. Accordingly, that Williams did not understand the extent to which he was releasing his claims-even if true-is not a basis for setting aside the compromise and release. We have held that the board can set aside a compromise and release for fraud. However, Williams offers no specific evidence that Knik acted intentionally. The board found that Knik made good faith controversions and had sufficient evidence for a difference of opinion with Williams. Therefore, there was no evidence of fraud or duress and, thus, no reason to set aside the compromise and release.

2. The board did not err in finding that the compromise and release covered penalties for late payment of medical bills.

Williams claims that the board erred in finding that the compromise and release released Knik from all pre-July 1, 1997 penalties. Williams claims that the parties did not intend to release Knik from all penalties when the agreement was signed, only those penalties relating to the specific issues addressed by the agreement. A compromise and release "is interpreted in the same manner as any other contract." Because this issue presents a factual question-what the parties intended when they entered into the compromise and releage-the substantial evidence standard is used in reviewing the board's findings.

Broad language in settlement agreements implies that all claims are settled; the parties must specifically state claims that are not settled. Section 8 of the compromise and release contains language that releases "the employer and the carrier from any and all liability arising out of or in any way connected with the issues listed above." The use of such broad language contemplates the settling of all disputes the parties may have. The issue of penalties and interest was contested by the parties at the time the parties entered into the compromise and release. It is incongruous for the parties to use such broad language and settle for a total sum of $20,500 while intending for certain issues to remain contested. Also, the compromise and release listed penalties and interest as separate issues, which could reasonably be read to mean that the parties were settling their disputes over all penalties and interest prior to July 2, 1997. Therefore, there was. substantial evidence to support the board's finding that the compromise and release covered penalties on untimely paid medical benefits. Because substantial evidence supported the board, we uphold its decision.

E. The Superior Court Did Not Err in Affirming the Board's Decision Denying Williams's Claim for Additional Penalties under AS 23.30.155(e).

Williams elaims that the carrier delayed in paying medical bills to the point of delinquency, and is therefore liable for penalties. He notes that many medical bills were controverted because of a lack of documentation or failure to supply necessary information by the medical providers, and asserts that this delinquency caused him severe emotional stress. He argues that if he had been made aware of the documentation problems within a reasonable time he would have been able to aid in their resolution and thereby avoid the stress he claims he suffered.

Medical bills for an employee's treatment must be paid by the employer within fourteen days after the date on which the employer received the bill and a completed report. Alaska Statute 28.30.155 provides for a late penalty on all compensation not paid within seven days after it has become due unless the employer has filed a notice of controversion and notified the employee of the controversion. We have held that medical benefits are considered "compensation" for the purpose of AS 23.30.155. Therefore, the employer is liable for penalties on any medical bills not paid within twenty-one days after receipt of the bill and a completed report.

Williams contends that under 8 AAC 45.082(d)(1) an employer must notify an employee fourteen days after the bill is received if this bill will not be paid, even if nonpayment is because a completed report has not been received. Williams argues that an employer should also be liable for penalties when it fails to give notice to the employee that a report was not received from the medical provider. The board found this reading of 8 AAC 45.082(d)(1), which it termed "novel," to be wrong because it read subsection (d)(1) in isolation and without reference to the rest of subsection (d). The board found that payment is not due until the completed medical record is received and that no notice of delay or refusal to pay is due until fourteen days after the bill and the completed medical report are received by the employer.

Since this regulation involves the expertise of the board in determining when compensation benefits are due, the board's findings are reviewed under a rational basis standard. We have held that a rational basis standard is applied when the agency is " 'making law by creating standards to be used in evaluating the case before it and future cases'" We uphold the board's findings because its interpretation is a reasonable one. First, the fourteen-day time period establishing a payment due date under 8 AAC 45.082(d) does not start to run until a completed report is received. This implies that the employer does not have to take action on the bill until a completed report is received. Second, penalties under AS 23.30.155(e) are imposed solely for failure to make payment within seven days after payment is due; there is no mention of a penalty for failure to notify. Therefore, the board did not err in finding that Williams was not entitled to penalties under AS 23.30.155(e).

F. The Superior Court Did Not Err in Affirming the Board's Decision Denying Williams's Claims that Knik Unfairly or Frivolously Controverted Benefits.

An employee is entitled to penalties on compensation due if compensation is not properly controverted by the employer. Williams claims that the board erred in finding that Knik properly controverted his claims. We have held that an employer must have sufficient evidence in order to make a good faith controversion. Specifically, there must be "reliance by the insurer on responsible medical opinion or conflicting medical testimony. The board had substantial evidence to find that Knik did not unfairly or frivolously controvert benefits after July 2, 1997.

First, the board found that Knik had specific evidence to controvert Williams's treatment at Central Peninsula Hospital on January 28, 1998. Christine Preston, Knik's claim representative, testified that the only treatment notes she received on the hospital bill indicated that treatment was for the right knee due to a fall This evidence is confirmed by an evaluation report. Since Williams's work-related injury was to his left knee, there was a sufficient medical basis to controvert. Therefore, the board did not err in finding that Knik did not act in bad faith,

Second, the board found that Knik had specific evidence to controvert the home gym prescribed for Williams on November 25, 1997. The board found that there was reasonable medical evidence that the same doctor was simultaneously, inconsistently, prescribing formal physical therapy in a clinic. This conclusion is supported by the prescriptions for both the home gym and physical therapy. This finding is also supported by the testimony of Carol Jacobsen, a rehabilitation specialist working at the request of the insurance company. Thus, there was substantial evidence that Knik did not unfairly or frivolously controvert this claim.

G. The Superior Court Did Not Err in Affirming the Board's Decision Awarding Only One-Half of Coe's Attorney's Fees to Williams.

Williams claims that the board erred in awarding him one-half of Coe's actual fees. The board felt that one-half of Coe's actual fees was reasonable under AS 285.30.145(b) and 8 AAC 45.180. The board found that Williams's case was "complicated, extremely confusing, and tenaciously litigated." The board also found that Coe devoted an exceptional number of hours to Williams's case in order to attend the hearing and replace Jones, who testified at the hearing. Howeyver, the board found that Williams prevailed on relatively few issues. Taking into account the large number of issues addressed, the complexity of these issues, and the benefit to Williams in partially successful prosecution of his claims, the board found that one-half of Coe's actual fees was reasonable.

We have held that awards of attorney's fees under AS 23.30.145 "should be fully compensatory and reasonable, in order that injured workers have competent counsel available to them." However, this does not mean that an attorney representing an injured employee in front of the board automatically gets full, actual fees. We held in Bouse v. Fireman's Fund Insurance Co. that an employee is entitled to "full reasonable attorney's fees for services performed with respect to issues on which the worker prevails." In that case, the board found that Bouse was not entitled to 100 percent of his attorney's fees because he did not prevail on all issues and instead awarded him half of his attorney's fees. We upheld the board's findings because the claims on which Bouse did not prevail were worth as much as the claims on which he prevailed.

Here, the board weighed the nature, length, and complexity of Coe's services with the number of issues on which Williams actually prevailed as required under the law. Williams prevailed on his claims for medical benefits for treatment at Central Peninsula Hospital on November 21, 1997 with related costs and reimbursement for additional medical transportation costs. Williams also obtained interest on these claims. However, Williams did not prevail on his claims for PTD benefits, a compensation rate adjustment, the setting aside of the compromise and release, additional penalties, and unfair or frivolous controversions. Also, the board found that it did not have jurisdiction to award civil penalties or criminal sanctions against Knik. The board did not abuse its discretion when awarding Williams one-half of Coe's actual attorney's fees. Therefore, we uphold the award of one-half of Coe's attorney's fees.

H. The Superior Court Did Not Err in Finding that a Panel Member's Alleged Misconduct Did Not Violate Williams's Due Process Rights.

Williams claims that his due process rights were violated when his case was decided by a panel that contained a member he claims fell asleep during the hearing. Williams also claims that sleeping during the hearing by a panel member violated his due process rights. Williams offers the videotape of the hearing as proof that a panel member slept during the hearing. Williams never specifically named nor otherwise identified any particular panel member as the one that slept. Our review of the videotape failed to reveal any evidence of a sleeping panel member. Without more evidence or, at the very least, disclosure of the identity of the alleged sleeping board member, Williams has no claim for relief. Moreover, failure to make the appropriate objection during the hearing waives the right to appeal procedural errors. Therefore, by not producing sufficient evidence and by failing to raise the issue of the allegedly sleeping board member at the hearing, Williams has waived the issue.

I. The Superior Court Did Not Err in Affirming the Board's Decision To Deny Williams's Petition for Reconsideration.

Williams claims that the board did not give due consideration to any of the evidence presented by Williams in his petition for reconsideration. Under 8 AAC 45.150, the board has discretion to decide whether it will examine previously submitted evidence but must give due consideration to any petition for reconsideration. The board found that the "record was fully developed" and that "the case was fully and capably argued by both parties." The board exercised its discretionary authority to grant a limited review in order to view the videotape of the alleged sleeping panel member. After each panel member independently viewed the videotape the board found that "all three panel members were actively following the testimony, discussion and argument of the hearing." The board gave due consideration to Williams's petition for reconsideration and the denial of the petition was not an abuse of discretion.

v. CONCLUSION

The decision of the superior court was not a final judgment because the superior court remanded the issue of Jones's fees to the board for further proceedings. However, we treat this appeal as a petition for review under Appellate Rule 402 and resolve all issues presented in the case. We AFFIRM the superior court in all respects save one: We REVERSE its ruling that the board abused its discretion by excluding the two affidavits filed late by Jones and hold that the board did not err in refusing to consider late affidavits under the pre-hearing order. On all of the other issues raised in this appeal, we AFFIRM the decision of the superior court.

      . For the purpose of clarity, the employer and the insurance company will collectively be referred to as Knik.

      . A patellectomy is the excision, or removal, of the patella, commonly referred to as the kneecap. StEpman's Mepicat Dictionary 1149 (25th ed.1990).

      . "Iatrogenic narcotic dependency" is narcotic dependency resulting from the use of prescribed drugs.

      . Global assessment of functioning measures "a patient's psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." American Psvosmatric Associa-Tow, Diacnostic anp Stattsticar Manuar or Mrntat Disorpers 34 (4th ed. Text revisions 2000).

      . DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000); Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987).

      . Tesoro Alaska Petroleum Co., 746 P.2d at 903.

      . Id.

      . Id.

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . DeYonge, 1 P.3d at 94.

      . Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456 (Alaska 1997) (quoting Miller v. IIT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978)).

      . Cameron v. Beard, 864 P.2d 538, 545 (Alaska 1993) (citing Schmidt v. Lashley, 627 P.2d 201, 204 n. 7 (Alaska 1981)).

      . Oaksmith v. Brusich, 774 P.2d 191, 195 (Alaska 1989).

      . Id.

      . Bouse v. Fireman's Fund Ins. Co., 932 P.2d 222, 241 (Alaska 1997).

      . Id. (citing Bailey v. Litwin Corp., 780 P.2d 1007, 1011 (Alaska 1989)).

      . City of North Pole v. Zabek, 934 P.2d 1292, 1295 (Alaska 1997) (citing City and Borough of Juneau v. Thibodeau, 595 P.2d 626, 629 (Alaska 1979)).

      . Zabek, 934 P.2d at 1296.

      . See id.; see also Waldroup v. Lindman, 28 P.3d 293, 301 (Alaska 2001) (stating that "we choose to treat it as if it were raised by a petition for review and review its merits to avoid a possi-bie future appeal on this issue").

      . Alaska R.App. P. 402(b)(1).

      . 8 Alaska Administrative Code (AAC) 45.065 states in relevant part:
      (c) After a prehearing the board or designee will issue a summary of the actions taken at the prehearing, the amendments to the pleadings, and the agreements made by the parties or their representatives. The summary will limit the issues for hearing to those that are in dispute at the end of the prehearing. Unless modified, the summary governs the issues and the course of the hearing.

      . Lajiness v. H.C. Price Constr. Co., 811 P.2d 1068, 1069 n. 2 (Alaska 1991).

      . AS 23.30.120 states in relevant part:
      (a) In a proceeding for the enforcement of a claim for compensation under this chapter it is presumed, in the absence of substantial evidence to the contrary, that
      (1) the claim comes within the provisions of this chapter

      . Meek v. Unocal Corp., 914 P.2d 1276, 1279-80 (Alaska 1996).

      . AS 23.30.122.

      . The version of AS 23.30.220(a) in effect on the date of Williams's injury stated in relevant part:
      (a) The spendable weekly wage of an injured employee at the time of an injury is the basis for computing compensation. It is the employee's gross weekly earnings minus payroll tax deductions. The gross weekly earnings shall be calculated as follows:
      (1) the gross weekly earnings are computed by dividing by 100 the gross earnings of the employee in the two calendar years immediately preceding the injury;
      (2) if the employee was absent from the labor market for 18 months or more of the two calendar years preceding the injury, the board shall determine the employee's gross weekly earnings for calculating compensation by considering the nature of the employee's work and work history, but compensation may not exceed the employee's gross weekly earnings at the time of the injury.

      . 882 P.2d 922 (Alaska 1994).

      . Id. at 929.

      . Id. at 924.

      . Id.

      . Id. at 928.

      . 975 P.2d 684 (Alaska 1999).

      . Id. at 685-87.

      . Id. at 689.

      . Id.

      . Id.

      . Id.

      . AS 23.30.120(a)(1).

      . Thompson, 975 P.2d at 689.

      . AS 23.30.012.

      . 856 P.2d 1155 (Alaska 1993).

      . Id. at 1159 (holding that AS 23.30.012 is an "expression of legislative intent that approved agreements may not be modified because of mistakes of fact.").

      . Id. at 1158.

      . Blanas v. Brower Co., 938 P.2d 1056, 1060-62 (Alaska 1997).

      . Barber v. Nat'l Bank of Alaska, 815 P.2d 857, 862 (Alaska 1991) (listing requisite elements for fraud cause of action).

      . Cameron v. Beard, 864 P.2d 538, 545 (Alaska 1993) (citing Schmidt v. Lashley, 627 P.2d 201, 204 n. 7 (Alaska 1981)).

      . See Martech Constr. Co., Inc. v. Ogden Envtl. Servs., Inc., 852 P.2d 1146, 1152 (Alaska 1993) (stating that ""the agreement indicates a complete washing of the hands between the parties using as soap blatantly broad language to cover all possible causes of action" and that "although the [claim] was not specifically discharged, neither was it specifically reserved as an independent claim.").

      . The briefs do not make clear whether the controverted penalties and interest are before or after July 2, 1997. Williams is not entitled to any penalties or interest for late-paid medical benefits prior to July 2, 1997, regardless of the theory argued, because these claims were released under the compromise and release:

      . The version of 8 AAC 45.082(d) in effect during the relevant time period states in relevant part:
      (d) Medical bills for an employee's treatment are due and payable within 14 days after the date the employer received the medical provider's bill and a completed report on form 07-6102....
      (1) a medical bill or if the medical bill is not paid in full as billed, the employer shall tell 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 within 14 days after receipt of the bill and completed report on form 07-6102.

      . AS 23.30.155 states in relevant part:
      (b) The first installment of compensation becomes due on the 14th day after the employer has knowledge of the injury or death. On this date all compensation then due shall be paid. Subsequent compensation shall be paid in installments, every 14 days, except where the board determines that payment in installments should be made monthly or at some other period.

      (d) ... If the employer controverts the right to compensation after payments have begun, the employer shall file with the board and send to the employee a notice of controversion within seven days after an installment of compensation payable without an award is due. ...
      (e) If any installment of compensation payable without an award is not paid within seven days after it becomes due, as provided in (b) of this section, there shall be added to the unpaid installment an amount equal to 25 percent of it. This additional amount shall be paid at the same time as, and in addition to, the installment, unless notice is filed under (d) of this section or unless the nonpayment is excused by the board after a showing by the employer that owing to conditions over which the employer had no control the installment could not be paid within the period prescribed for the payment.

      . Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1192 (Alaska 1993).

      . Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987) (quoting Earth Resources v. State Dep't of Revenue, 665 P.2d 960, 964 (Alaska 1983)).

      . Id.

      . 8 AAC 45.082(d).

      . AS 23.30.155(e).

      . AS 23.30.155.

      . Harp v. ARCO Alaska, Inc., 831 P.2d 352, 358 (Alaska 1992).

      . Id. (quoting Stafford v. Westchester Fire Ins. Co. of New York, 526 P.2d 37, 42 (Alaska 1974), overruled on other grounds, Cooper v. Argonaut Ins. Companies, 556 P.2d 525 (Alaska 1976)).

      . Controversions occurring prior to July 2, 1997 are covered by the compromise and release and, therefore, may not be raised in this appeal.

      . AS 23.30.145(b) states:
      (b) If an employer fails to file timely notice of controversy or fails to pay compensation or medical and related benefits within 15 days after it becomes due or otherwise resists the payment of compensation or medical and related benefits and if the claimant has employed an attorney in the successful prosecution of the claim, the board shall make an award to reimburse the claimant for the costs in the proceedings, including a reasonable attorney fee. The award is in addition to the compensation or medical and related benefits ordered.
      8 AAC 45.180 states in relevant part:
      (d) The board will award a fee under AS 23.30.145(b) only to an attorney licensed to practice law under the laws of this or another state.
      (2), lIn awarding a reasonable fee under AS 23.30.145(b) the board will award a fee reasonably commensurate with the actual work performed and will consider the attorney's affidavit filed under (1) of this subsection, the nature, length, and complexity of the services performed, the benefits resulting to the compensation beneficiaries from the services, and the amount of benefits involved.

      . Childs v. Copper Valley Elec. Ass'n, 860 P.2d 1184, 1190 (Alaska 1993) (emphasis in original) (citing Cortay v. Silver Bay Logging, 787 P.2d 103, 108 (Alaska 1990)).

      . Bouse v. Fireman's Fund Ins. Co., 932 P.2d 222, 241 (Alaska 1997).

      . See id. at 241.

      . See id. at 241-42.

      . AS 23.30.145(b) and 8 AAC 45.180(d)(2).

      . See Williams v. Util. Equip., Inc., 837 P.2d 1112, 1116-1117 (Alaska 1992) (stating that "Williams waived his objections, despite the protective order, when he did not make specific objections as the testimony was presented"); Far N. Sanitation, Inc. v. Alaska Pub. Utils. Comm'n, 825 P.2d 867, 873 n. 8 (Alaska 1992) (stating that the "conclusion that Far North's failure to object or raise the point before the Alaska Public Utilities Commission constitutes waiver, because any other result would inevitably create an incentive for dilatory failure to assert error"); Gilbert v. State, 598 P.2d 87, 92 (Alaska 1979) (stating that "[where the error is not obvious or immediately apparent we should abstain from a full-scale examination of it, for the basic rule is that failure to object to offered evidence waives the objection"); McGee v. State, 614 P.2d 800, 803-04 & n. 6 (Alaska 1980) (holding that failure to make timely objection at trial to introduction of evidence concerning a lineup, waived defendant's argument that photographic identification procedure was so impermissibly suggestive and unreliable as to violate due process of law).

      . 8 AAC 45.150 states in relevant part:
      (£) In reviewing a petition for a rehearing or modification the board will give due consideration to any argument and evidence presented in the petition. The board, in its discretion, will decide whether to examine previously submitted evidence.