author: EASTAUGH, Justice.

text:
    Christian F. WYLLER, Appellant, v. Donald MADSEN, Henry Wilde, Anita Wilde, and James Cummings, Appellees.
    No. S-10224.
    Supreme Court of Alaska.
    May 9, 2003.
    Philip M. Pallenberg, Batchelor, Pallen-berg & Associates, Juneau, for Appellant.
    .. Bernd C. Guetschow, Bernd C. Guetschow, A Professional Corporation, Anchorage, for Appellees.
    Before: FABE, Chief Justice, . MATTHEWS, EASTAUGH, and BRYNER, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Alaska Statute 32.05.330(b) permits a partner who has not wrongfully caused dissolution of a partnership to recover damages from each partner who has wrongfully caused the partnership to dissolve. Christian Wyller was a partner in a partnership which owned an office building in Juneau. He sought damages from other partners following the partnership's dissolution. The superior court, holding that Wyller's own wrongful acts had contributed to the dissolution, denied Wyller's claim for damages. We affirm, because we conclude that the superior court did not clearly err in finding that Wyl!-ler's acts contributed to the dissolution.

II. FACTS AND PROCEEDINGS

Christian Wyller was a partner in the Wildmeadow Village partnership. The partnership was formed in 1984 to manage Wild-meadow Village, a three-story office building in Juneau. As of 1984 the partnership consisted of Anita and Henry Wilde, Donald Madsen, Christian Wyller, and James Cummings. The Wildes, Madsen, Wyller, and Cummings each owned a twenty-five percent interest in the partnership. The voting interests were aligned with the ownership interests, and the Wildes jointly held a single vote for management purposes. Madsen, Wyiler, and Cummings were each entitled to a single vote.

Under difficult economic cireumstances the partnership received an Invitation to Bid (ITB) from the State of Alaska in January 1991 to lease approximately 7,000 square feet of office space for five years. Madsen and Henry Wilde submitted a bid on the state ITB without procuring a majority vote of the partnership, and in violation of the partnership agreement. The state subsequently advised the partnership that it was the low bidder on the ITB.

The partners held a partnership meeting on February 10, 1991 to discuss the state ITB. At that meeting the partners approved the state lease and various improvements necessary to meet the bid specifications.

The partnership's bid involved only portions of the second and third floors of its building. Madsen reported at the February 10 meeting that improvements of roughly $120,000 were necessary to meet the state bid-$70,000 for heating, ventilation, and air conditioning (HVAC) repairs, and some $50,000 for other tenant improvements Madsen explained that he prepared a loan package request for $120,000 to submit to the National Bank of Alaska (NBA) to finance the improvements. All four partners approved submission of the loan application. The application anticipated personal guarantees by the partners.

After the February 10 meeting, additional improvements beyond those required by the state lease were discussed by the Wildes, Madsen, and Wyller, but not approved. Time constraints prevented the partnership from finalizing the loan application before contracting for the work necessary to meet the state's bid specifications. Madsen retained a contractor, Holaday-Parks, Inc., to perform repairs on the building, and Madsen and Henry Wilde authorized work to the entire building, including repairs not necessary for the state lease and not properly approved by the partnership. The total cost of repairs and improvements actually made to the building was $257,000. This significantly exceeded the estimated expenses discussed at the February 10 meeting, and the $120,000 loan package presented to the bank.

In mid-April 1991 NBA notified the partnership that NBA would not lend $120,000 to the partnership under the terms of the loan application. The bank refused to allow the partnership to borrow the money, and requested that the partners either individually or jointly provide collateral independent of the partnership. The partners did not contemplate a loan with the requirement of personal collateral when they approved and submitted the loan application.

In a meeting that began May 6, 1991 and continued on May 8 and May 28, 1991, the four partners discussed financing options in light of the bank's loan refusal. Wyller expressed reluctance to pledge cash or personal collateral for a loan, objected to substantial expenditures made without authorization, and said that he was at the limit of his resources.

The partnership meeting degenerated, and Wyiler repeatedly voiced the opinion that the partnership was not authorized to pay the construction costs. On May 23 Wyller asked that management not "indulge[ ] in any excessive costs for anything on the building above the normal month-to-month expenses, the utilities and what have you." On appeal Wyller acknowledges that during the May meetings both he and Cummings "stated that they did not consider themselves responsible for the construction costs, since they had been incurred without authorization."

Madsen informed the partners that the bills needed to be paid, and told Wyler and Cummings that they were putting him in an "untenable position" by denying authorization to pay the construction costs. The construction bills were not paid, and Holaday-Parks brought suit against Wildmeadow Village partnership, its individual partners, and various lienholders on the Wildmeadow Village building. The complaint spawned counter- and cross-claims by all four partners. The underlying claim by Holaday-Parks was settled shortly before trial, and the case was tried only on the cross-claims among the partners. After a bench trial in December 1992, then-Superior Court Judge Walter L. Carpeneti entered Findings of Fact, Conclusions of Law, and Orders dated August 13, 1993. Judge Carpeneti ruled on the various cross-claims, and ordered an accounting and winding up of the partnership. With minor exceptions, Judge Carpeneti denied motions for reconsideration from Wyller and Cummings on February 6, 1995.

The winding up process took some time, and the case was ultimately transferred to Superior Court Judge Patricia A. Collins. The partnership's only asset, the office building in Juneau, was eventually sold. Notwithstanding the extended and contentious litigation, Judge Collins found that after the sale there was, "remarkably, approximately $410,000 to be distributed to the partners, less their capital contributions."

Judge Collins entered an order regarding the distribution of partnership funds on December 14, 2000 and reconsidered certain factual issues related to the post-trial findings of Judge Carpeneti. Judge Collins then entered a final judgment May 5, 2001 from which Wyller now appeals.

The issues Wyller presents on appeal stem from Judge Carpeneti's 19983 findings of fact and conclusions of law. At trial Wyller argued that he was entitled to damages under AS 32.05.330(b)(1)(B), which gives partners who have not wrongfully caused dissolution of a partnership a cause of action for damages against each partner who has wrongfully caused dissolution Judge Carpeneti found Wyller "partially at fault for causing the dissolution of the partnership," and therefore concluded that Wyller was "not entitled to damages under the statute."

Wyller now appeals Judge Carpeneti's finding on the AS 832.05.830(b) claim, and asks that we remand for determination of his damages. Wyller also appeals Judge Car-peneti's determination that no party was the prevailing party for the purposes of awarding attorney's fees under Alaska Civil Rule 82.

III DISCUSSION

A. Standard of Review

Alaska Civil Rule 52(a) provides that "[flindings of fact shall not be set aside unless clearly erroneous." "A finding is clearly erroneous if it leaves this court with a definite and firm conviction on the entire record that a mistake has been made." We apply a clearly erroneous standard of review to factual findings relating to the cause or causes of partnership dissolution under AS 32.05.330(b), and take the view of the evidence most favorable to the prevailing party at trial To the extent Wyller's appeal involves mixed questions of law and fact, we will evaluate the legal questions separately, and apply our independent judgment adopting the rule of law that is most persuasive in light of precedent, reason, and policy.

B. The Superior Court Did Not Clearly Err in Finding Wyller Partially at Fault for Dissolution of the Partnership. '

In its August 13, 1993 conclusions of law the superior court stated that "[blecause the court has previously found that Cummings and Wyller were partially at fault for causing the dissolution of the partnership, they are not entitled to damages under [AS 32.05.330(b) 1." The record suggests that the court's reference to its "previous findings" referred to findings of fact Nos. 18 and 19 issued that same day. In Finding No. 18 the court observed that shortly following the bank's loan refusal, "Cummings and Wyller informed Madsen and Wilde that they did not consider themselves bound to provide financing for any of the improvements which by that time had been made to the property." In Finding No. 19 the court noted that "Cummings and Wyller refused to proceed with the loan application despite their approval of the state as a tenant, and despite their approval of submission of a loan package." The court continued in Finding No. 19, adding that "[t}heir later claims that the entire contract with Holaday-Parks was entered into without permission, or that the bank's financing requirements were somehow Madsen's fault, are not supported by the evidence." e

In response to Wyller's allegation that the court did not explain why he was partially at fault for dissolution of the partnership, the court's December 8, 1994 order on reconsideration referred back to the substance of Findings Nos. 18 and 19. The court reiterated Finding No. 18, adding that Wyller and Cummings told Madsen and the Wildes that they did not consider themselves bound to provide financing for any of the improvements "without justification." The court also reiterated Finding No. 19, and stated that "Cummings and Wyller had refused to complete the loan application process despite having previously approved the State of Alaska as a tenant and the submission of the loan application."

On appeal Wyller selectively construes the court's findings. He suggests that the court found him partially responsible for dissolution, "based on the fact that [he] declined to put up his personal assets as collateral for a proposed loan." Proceeding from this characterization, Wyler urges the court to hold as a matter of law that a partner is not obligated to pledge personal collateral to pay for partnership expenses.

Wyller's characterization of the court's findings is incomplete. It ignores the rationale set out in Finding No. 18-that he wrongfully denied responsibility for financing any of the improvements which by that time had been made to the building. Wyller does not deny that he disclaimed responsibility for the construction costs. In Wyller's own rendition of the facts on appeal he acknowledges that "(alt the May 28, 1991 meeting, both [he and Cummings] stated that they did not consider themselves responsible for the construction costs, since they had been incurred without authorization." Wyller did not want the partnership to pay for any of the con-stpuction costs; he did not limit his objection to costs related to the unapproved improvements. This is clear from his expressed desire at that meeting that management not "indulge[ ] in any excessive costs for anything on the building above the normal month-to-month expenses, the utilities and what have you." In Wyller's pretrial memorandum he explained that in the May 1991 meetings both he and Cummings "demanded that no further partnership funds be spent on the [Holaday-Parks] debt[ ]."

Wyller was not justified in preventing the partnership from paying for any of the improvements. Nor was he justified in denying personal or partnership responsibility for these costs. Madsen and Wilde may have bid on the state ITB in breach of the partnership agreement, but the superior court found that the partnership, including Wyller, subsequently ratified submission of the bid and the state lease, approved up to $120,000 in necessary improvements, approved submission of a loan application, and approved Holaday-Parks as a contractor. These approvals are not disputed on appeal. And given these approvals, Wyller could not then deny responsibility for the $120,000 in necessary improvements he authorized.

Wyller acknowledges on appeal that he authorized $120,000 in improvements, and that he later told the partnership he did not consider himself responsible for any construction costs. The fact that unauthorized improvements beyond those he approved were made to the building did not excuse him from responsibility for the improvements he did approve. The necessary improvements discussed in the February 10, 1991 meeting were properly approved and benefitted the partnership. Wyller had no reason to disclaim responsibility for them.

As Wyller observes on appeal, "[iJt is well established that, under the Uniform Partnership Act, partners are jointly liable for partnership obligations." Wyller implies that he would be personally liable for his portion of the $120,000 only if the partners actually agreed to borrow $120,000 instead of simply filing a loan application. Under AS 32.05.100(a)(2), however, partners are liable for both the "debts and obligations" of the partnership. Wyller's argument seems to presume that "obligations" under AS 32.05.100 are restricted to actual bank loans. Wyller advances no argument that he was not liable for the obligations the partnership incurred in contracting to perform the approved repairs to the building.

Once the partnership authorized contracting with Holaday-Parks for the necessary improvements, neither the bank's subsequent loan refusal nor any subsequent breach by the partners excused Wyller from his obligations regarding his share of the $120,000. Wyller may have been excused from obligations stemming from the unauthorized portion of the repairs, but it is unnecessary for us to address that issue because Wyler disclaimed responsibility for the construction costs generally-not simply the unauthorized costs. Wyller fails to provide a justification for disclaiming responsibility for any of the partnership's construction costs, or for preventing the partnership from making payment on any of the construction bills.

The superior court found that Wyller's unjustified denial of responsibility for construction costs wrongfully contributed to the dissolution of the partnership. Wyller wrongfully denied responsibility for any of the construction costs, and his denial of authorization to pay construction costs contributed to the course of events that precipitated the dissolution. Failure to pay construction costs brought about the Hola-day-Parks suit, and that suit resulted in dissolution of the partnership. Determining the causes of dissolution is a factual ingqui-ry, and Wyller does not establish that the superior court clearly erred in finding that his actions partially caused dissolution. Finding No. 18 justifies the court's conclusion that Wyller was ineligible for damages under AS 32.05.380(b).

Wyller indirectly suggests two possible theories under which his denial should have been excused. Neither is persuasive. First, Wyller contends that if he did have a duty to pursue financing through the bank after it rejected the terms of the loan application, his duty was exeused by Madsen's breach in authorizing unapproved improvements to the building. This argument is unpersuasive because Madsen's breach in authorizing the unapproved work took place after Wyller and the partnership ratified the state lease and authorized $120,000 of necessary improvements. Madsen's breach may have excused Wyller from liability for the unauthorized portion of the repairs, but it was not a prior breach with respect to the improvements Wyller had previously authorized. Any breach by Madsen in authorizing unapproved repairs would not excuse Wyller from obligations flowing from the partnership's contract with Holaday-Parks to perform approved repairs.

Wyller's second potential justification for denying responsibility for the $120,000 in authorized repairs is implied in his contention that the only reason the partnership needed a loan was to pay the unauthorized portion of the expenses. Wyller claims that the partnership paid for $106,000 in tenant improvements from its own resources without partner contributions, and argues that without Madsen's breach in authorizing unapproved repairs, the partnership would have either required a very small loan or no loan at all.

As discussed above, though, Wyller and the partnership approved $120,000 in improvements before Wyller wrongfully denied responsibility for any of the construction costs. The availability of $106,000 in partnership resources to pay construction costs is immaterial to Wyller's wrongful conduct. He did not merely refuse to pursue financing, he denied the partnership authority to pay the construction bills. And furthermore, whether that wrongful conduct contributed to the dissolution of the partnership is a factual inquiry reviewed under a clearly erroneous standard. Wyller fails to show that his conduct was not wrongful, or that it did not contribute to the dissolution of the partnership. Viewing the evidence in the light most favorable to the prevailing parties at trial, we conclude that the court did not clearly err in finding that Wyller's wrongful conduct contributed to the dissolution of the partnership.

Wyller's claims regarding available partnership resources are unpersuasive. Cash reserves sufficient to cover the cost of the approved repairs, assuming they were available, would not preclude a conclusion that Wyller's conduct wrongfully contributed to dissolution of the partnership. Wyller wrongfully prevented the partnership from paying the construction costs-irrespective of its available cash flow-and not paying construction costs spawned the Holaday, Parks suit and ultimately led to dissolution. The record of the May 1991 partnership meeting demonstrates that it was Wyller's wrongful behavior that led Madsen and the Wildes to seek dissolution. The trial court therefore did not clearly err in finding Wy!-ler ineligible for damages under AS 32.05.330(b).

Wyller spends the bulk of his appeal arguing as if the trial court found him ineligible for damages under AS 32.05.330(b) because he refused to pledge personal collateral for a partnership loan. He claims that his decision not to pledge personal collateral was a protected business judgment, and urges this court to hold that partners are not obligated to pledge personal collateral for partnership loans.

Wyller misreads the trial court's decision. The trial court did not find against him for failing to pledge personal collateral. The trial court did note in Finding No. 19, and then later on reconsideration, that Wyller refused to complete the loan application process despite his prior approval of the state lease and necessary repairs. The court also acknowledged that the partners did not contemplate the requirement of personal collateral in their loan application, and that the variance between the loan application and the bank's requirement of personal collateral was material. Nevertheless, these observations should not be viewed in isolation. We view Wyller's failure to cooperate in the financing process in the context already discussed-one in which he approved the state lease and the contract for the necessary repairs but declined responsibility for any of the construction costs. The court's observation regarding Wyller's refusal to participate in the financing process was shorthand for describing Wyller's denial of responsibility for any of the construction costs despite his prior approvals, and his refusal to allow the partnership to pay its bills.

It is not clear to us that the trial court actually presumed that Wyller had a duty to pledge personal collateral for a partnership loan, but we need not speculate about the extent of Wyller's obligation to pursue financing. Finding No. 18 and the fact that Wyller denied responsibility for any of the construction costs in the May 1991 meeting are sufficient to prevent recovery under AS 32.05.330(b).

C. Wyller Is Not Entitled to Rule 82 Attorney's Fees.

Because the superior court did not reversibly err in finding Wyller ineligible for damages under AS 32.05.330(b), he was not the prevailing party at trial and therefore is not entitled to attorney's fees under Alaska Civil Rule 82.

IV. CONCLUSION

We therefore AFFIRM the judgment below.

CARPENETI, Justice, not participating.

      . The partnership formed in 1984 replaced a partnership that included each of these partners except Wyller.

      . The superior court concluded that Wyller and Cummings had ratified submission of the bid and approved the improvements necessary to meet the bid specifications after it found that neither Wyller nor Cummings objected "in any way" to the State of Alaska as a tenant, or "expressed any objection" to pursuing the financing necessary to pay for the improvements. On appeal Wyller does not dispute his approval of the bid, or of the improvements necessary for the state lease.

      . The amounts of Madsen's cost estimates to the partnership were disputed at trial. Wyller argues on appeal that Madsen told the partnership that Madsen estimated there would be $120,000 in necessary improvements-$70,000 for HVAC repairs and $50,000 for other work. Following the February 10, 1991 meeting Madsen estimated the total cost of improvements in a loan application as $157,000; at trial he suggested that his estimate to the partnership was greater than $140,000 ($70,000 for HVAC repairs and $71,000 for other improvements). The trial court could not "verify the accuracy" of Wyller's claim that Madsen estimated $50,000 in non-HVAC improvements, but used this figure to conclude that Madsen's estimate to the partners was at least that much. The court found that Wyller agreed to the expenditure "of up to $120,000 for the improvements necessary to secure the state contract." We accept this finding because Wy!l-ler does not dispute on appeal that he authorized at least $120,000 in improvements necessary for the state lease.

      . The superior court found that Wyller approved the selection of Holaday-Parks as contractor either by telephone or by ratification because he knew of Holaday-Parks's proposal and did not object. Cummings was not involved in the decision to contract with Holaday-Parks, but the superior court found that once the partners gave unanimous approval to borrowing money for the necessary repairs, contracting for the work was a "management decision" under the partnership agreement, and could therefore be approved by a majority vote of the partners. We accept the superior court's finding that three of the four partners approved contracting with Holaday, Parks for the necessary repairs, which was sufficient under the partnership agreement at paragraph 19. Paragraph 19 of the partnership agreement provided that '"[al majority vote of the partners will be sufficient for approval" with respect to "[alll decisions affecting the partnership and its policies of management."

      . AS 32.05.330(b)(1)(B) provides:
      (b) When dissolution is caused in contravention of the partnership agreement the rights of the partners are as follows:
      (1) each partner who has not caused dissolution wrongfully has (B) the right, as against each partner who has caused the dissolution wrongfully, to damages for breach of the agreement.

      . City of Hydaburg v. Hydaburg Coop. Ass'n, 858 P.2d 1131, 1135 (Alaska 1993) (quotation omitted).

      . Schymanski v. Conventz, 674 P.2d 281, 287 (Alaska 1983); Geczy v. LaChappelle, 636 P.2d 604, 606-07 (Alaska 1981).

      . Geczy, 636 P.2d at 606.

      . Cockerham v. State, 933 P.2d 537, 539 n. 9 (Alaska 1997) (citing Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).

      . See AS 32.05.100 (establishing that all partners are jointly liable for contractual debts and obligations of a partnership). See also 1 Wirurmam Meaps Er an, CyctorEpta or THE Law or Privaze Corporations § 20 (permued., rev. vol.1999) (observing that partners in a partnership are liable for the full extent of the indebtedness of the partnership, and that partners are individually entitled to the rights, and individually liable for the obligations, under contracts entered into by the partnership) 59A AmJur2p Partnership § 639 (2002) (partners are jointly liable for all debts and obligation of partnership not arising from tort or breach of trust).

      . Contrary to Wyller's supposition, the availability of cash reserves sufficient to cover a large portion of the approved repairs actually seems to reinforce the wrongfuiness of his denial of partnership authority to pay Holaday-Parks in the May 1991 meeting.

      . At the May 1991 meeting Madsen told Wyller and Cumunings, "I would have to say that what you two fellas are doing is putting me in an untenable position.... [The bills need to be paid, and if you're putting me in that untenable position of where the bills are not going to now be paid, it's probably time that we got the judge and the jury involved and got it resolved once and for all, and I'll move for dissolutionment of the partnership and I'll so proceed legally to do that." Madsen and the Wildes ultimately sought legal dissolution of the partnership.

      . Madsen and the Wildes each paid $68,000 and Wyller paid $10,000 to Holaday-Parks to settle the contractor's claims against the partnership. The fact that Wyller paid $10,000 in the settlement does not affect our analysis. Even if Wyller's $10,000 payment covered his share of the balance between payments made to Holaday Parks from partnership resources and the $120,000 the partners authorized for improvements, the settlement payment was made subsequent to Wyller's wrongful conduct, the filing of the Holaday-Parks suit, and the chain of events that the trial court found led to dissolution. The settlement payment therefore need not bear on whether Wyller contributed to the dissolution of the partnership.

      . After observing that the variance between the partnership's loan application and the bank's requirement for personal collateral was material, the court noted that "the failure of Madsen to obtain the most favorable terms from the bank did not excuse Cummings and Wyler from their obligation to cooperate with the partnership efforts to locate financing for the project." We agree with the court's assessment, and believe it falls short of finding Wyller had a duty to pledge personal collateral for a partnership loan.


source: Caselaw Access Project

author: FABE, Chief Justice.

license: Public Domain

text:
    Leon ROBINSON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
    No. S-10373.
    Supreme Court of Alaska.
    May 9, 2003.

      Charles W. Coe, Law Office of Charles W. Coe, Anchorage, for Appellant.
    Trena L. Heikes, Anchorage, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

FABE, Chief Justice.

I. INTRODUCTION

Leon Robinson appeals the Alaska Workers' Compensation Board's denial of benefits related to back injuries that he allegedly suffered in 1992 and 1996 while working as a bus driver for the Municipality of Anchorage and the Board's refusal to rule upon the issue of whether Robinson's daily work aggravated his condition. Complicating this case is the fact that Robinson was also injured in a 1993 non-work-related automobile accident which he settled for over $47,000. Because substantial evidence supports the Board's finding that Robinson failed to establish that his work-related injuries continued to be a substantial factor in his back condition after he stopped receiving workers' compensation benefits, we affirm the Board's denial of benefits. And because it was not clear error for the Board to decline to answer the question whether Robinson's work aggravates his condition, we affirm the Board's decision requiring Robinson to file a new claim addressing this issue.

II. FACTS AND PROCEEDINGS

A. Factual History

1. The 1992 slip-and-fall work-related injury

Leon Robinson has worked as a bus driver for the Municipality of Anchorage for over ten years. On the morning of September 28, 1992, Robinson slipped on the stairs of the bus that he was driving. While grabbing the sides of the door to prevent himself from falling to the ground, he heard a popping sound in his back. Robinson finished his shift in the afternoon and went to the emer-geney room that evening complaining of back pain, primarily in the lower left area of his back and radiating down his left leg to his foot. The admitting doctor diagnosed Robinson with a "[lJow back sprain ... associated with sciatica" and noted that Robinson "may well have a herniated disc," but the doctor also stated that "(there is no indication at this time of central herniation." The doctor referred Robinson to Dr. Declan Nolan for a follow-up appointment.

Dr. Nolan diagnosed Robinson as having "[aleute lumbar strain and facet pain. Doubt dise syndrome. No radiculopathy." Dr. Nolan advised Robinson to take ten days off from work, to do gentle exercises, rest, and take prescribed medications. Robinson returned to work without restrictions on October 5, 1992, after using paid sick leave from September 27 through October 4, 1992. Robinson seeks compensation for wage losses from September 24 through October 5, 1992.

2. The 1998 non-work-related automobile accident

On December 22, 1998, Robinson's vehicle struck another vehicle, totaling Robinson's car, This accident was not work-related. Dr. Davis Peterson, who became Robinson's regular doctor and treated Robinson following this car accident, diagnosed Robinson with a right foot fracture, a contusion to his left knee from when his knees struck the dashboard, and "paraspinal muscle strain." Robinson also complained of pain to his right elbow and left thigh and back.

Robinson missed work from December 22, 1993 to March 1, 1994 because of his injuries. He was given paid sick leave from December 22 through January 7, 1994 and was granted medical leave without pay from January 10 through March 1. He initially claimed work-erg' compensation benefits for both of these periods but later waived these claims.

Sometime before May 1995 Robinson contacted the other driver's insurer, State Farm Insurance Company, seeking damages to compensate him for his injuries resulting from the car accident. Dr. Stephen Thomas, an orthopedist, was retained by State Farm to perform an independent medical examination to substantiate Robinson's claims. Dr. Thomas's report discussed only Robinson's foot and leg injuries. Dr. Thomas noted:

Mr. Robinson states that prior [to] the motor vehicle accident he had been walking up to seven miles at a time for weight loss and had lost approximately 30 pounds and was down to about 245. He felt that he was doing well. Since the motor vehicle accident, the most he could walk was a mile and he states that after a mile he would have a lot of pain.

In April 1995 Dr. Peterson recommended that Robinson get a lumbar MRI. The lumbar MRI revealed nerve root irritation caused by a herniated disk. Dr. Peterson administered an epidural injection of steroids to treat this condition, but the injection was ineffective.

3. October 1995 surgery

Robinson had surgery to treat the herniated disk on October 11, 1995. According to Dr. Peterson's report, four weeks after the surgery, Robinson reported having "no back pain, still has some right lateral thigh numbness, some occasional spasming of both legs, but overall is markedly improved with respect to pain." Dr. Peterson noted in January and March of 1996 that Robinson reported experiencing some pain in his back, thigh, and right knee.

4. 1996 bus seat injury

On August 6, 1996, Robinson injured his lower back when the back of his bus seat collapsed. It is undisputed that this accident temporarily increased Robinson's symptoms. Dr. Peterson recommended physical therapy sessions, which Robinson attended several times in September and October 1996.

After Robinson obtained a second lumbar MRI in December 1996, Dr. Peterson advised him that "given his occupation as a professional driver it will be important for him to" exercise his trunk and back daily. "He has to work 5 more years before retiring and I think he will probably be able to do this if he maintains adequate conditioning."

Robinson was relieved from his work duties to allow time for physical therapy in August and September 1997. He returned to work full time on January 4, 1998 after the Municipality refused to pay for further benefits. However, the Municipality modified Robinson's job by allowing him to work split shifts and take extended breaks. It appears that Robinson continues his work as a bus driver at present. Robinson claims that his back condition requires him to continue to take time off to recover and to see Dr. Peterson.

B. Procedural History

1. Robinson v. State Farm Insurance Co.

Robinson's attorney, Charles Coe, sent a series of letters to State Farm Insurance Company, the insurer of the other driver involved in the 1998 automobile accident, seeking compensation for Robinson's injuries. Although Robinson testified at the workers' compensation board hearing that his back was not injured in the 1998 accident and that he did not seek damages from State Farm related to his back, a July 1995 letter from Robinson's attorney to State Farm demanded "the policy limits plus Rule 82 fees and interest" for Robinson's expenses in traveling to Stanford and obtaining an MRI in May 1995, and for the eight weeks of missed work that were expected to result from the recommended dise surgery. A September 1995 letter from Robinson's counsel to State Farm states that "his 1992 back strain was on the left side and normally described as a muscle strain. The 1998 injury is to the right side radiating into his right leg. He intends to have surgery in the next couple of weeks.... Onee again we demand the policy limits, plus interest and fees." An October 1995 letter from Robinson's counsel to State Farm states that Robinson "is undergoing back surgery" and that "(hle did not need surgery prior to this incident."

In December 1995 Robinson filed suit against the driver of the other vehicle for damages for "injuries to his back, foot, and leg," including "[elxpenses and medication for medical treatment" and "[lJoss of wages." Robinson settled his claim against State Farm and its insured in March 1996 for approximately $47,000 for bodily injury, in addition to payments for property damage.

2. Workers' compensation claims

On November 14, 1996, Robinson filed a workers' compensation application for out-of-pocket medical expenses and "time loss" due to his 1992 slip-and-fall back injury. He later amended that application to include claims relating to his 1996 bus seat injury.

Robinson had initially sought recovery for temporary partial disability (TPD) benefits and the cost of the 1995 surgery, but he later abandoned these claims, conceding that "his group insurer has paid for some incurred medical expenses."

In his hearing brief, Robinson argued that he should receive temporary total disability (TTD) benefits for the period from September 1992 to August 1996 and "[time loss [in the form of TTD benefits] should be awarded after August 1996 for the periods where Dr. Peterson restricts [him] from working." In 1997 Robinson received TTD benefits for four weeks. Robinson also seeks "medical care for the 1992-1996 period, including his MRI in 1995 and the related travel expenses he incurred," as well as medical expenses after August 1996, including "all medications prescribed by Dr. Peterson, and all care provided, including the expenses related to the 1996 MRI." He further claims that a 18.5% permanent partial impairment (PPT), as assessed by Dr. Peterson, is more appropriate than the ten percent figure assessed by Dr. Smith "[in light of the new injury in 1996 and permanent increase in symptoms." Robinson argued that the 1992 and 1996 work accidents were substantial factors in causing his back condition and that the 1992 accident triggered a weakness in his back that gradually developed over time.

On February 22, 1997, Dr. Thad Stanford, an orthopedic surgeon, examined Robinson at the Municipality's request. Also at the Municipality's request, Dr. Bryan Laycoe, an orthopedic surgeon, examined Robinson on October 81, 1997. The Board granted Robinson's request for a second independent medical evaluation (SIME) based on its finding that there is "a dispute between the attending physician [Dr. Peterson] and the employer's physicians [Drs. Laycoe and Stanford] regarding the causes of the employee's medical condition." Dr. Douglas Smith, an orthopedic specialist, performed the SIME in June 1998.

Both parties filed hearing briefs, and the Board heard Robinson's claim on December 2, 1999. For both the 1992 and 1996 injuries, the Board found evidence establishing a "preliminary link" between the work accident and the employee's injury and applied a presumption of compensability under Meek v. Unocal Corp. The Board concluded that the Municipality had rebutted the presumption with substantial evidence in both cases and that Robinson had failed to prove his claim by a preponderance of the evidence.

Robinson petitioned the Board to reconsider his claim that "the employer is not entitled to notification or offset for the employee's third-party lawsuit under AS 28.30.015(k)." He also sought reconsideration of the Board's denial of benefits from August to November 1996 and its finding that Robinson's "physical therapist stated that he was potentially malingering." The Board denied Robinson's motion.

Robinson appealed to the superior court in February 2000. The superior court affirmed the Board's decision in full, finding that substantial evidence supported all of the challenged findings. Robinson appealed to this court.

III. STANDARD OF REVIEW

When the superior court acts as an intermediate court of appeal, "we independently review the merits of the administrative determination." "Questions of law which do not involve any particular agency expertise are reviewed under the substitution of judgment standard[;][qluestions of law involving agency expertise are reviewed under the 'reasonable basis test'[;][dleterminations of fact by an administrative agency are reviewed under the 'substantial evidence' standard." Thus, we "will not vacate findings of the Board when supported by substantial evidence. However, if the Board's decision rests on an incorrect legal foundation ..., independent review of the law is proper."

On review, we will not reweigh conflicting evidence, determine witness credibility, or evaluate competing inferences from testimony because those functions are reserved to the Board. Thus, even where there is conflicting evidence, we will uphold the Board's decision if it is supported by substantial evidence. However, we must independently review the evidence and reverse the Alaska Workers' Compensation Board's decision where we "cannot conscientiously find that the evidence supporting that decision is substantial."

IV. DISCUSSION

A. Burden of Proof

Alaska Statute 28.30.120(a) provides in pertinent part: "In a proceeding for the enforcement of a claim for compensation under [the Alaska Workers' Compensation Act] it is presumed, in the absence of substantial evidence to the contrary, that ... the claim comes within the provisions of the chapter." In Temple v. Denali Princess Lodge, we laid out the three-step presumption analysis that applies in workers' compensation cases: .

First, the employee must establish a preliminary link between the injury and the employment. This step of the analysis requires consideration of "only evidence that tends to establish the link."... _-
In the second step, we inquire whether the employer rebutted this presumption with "substantial evidence that either (1) provides an alternative explanation which, if accepted, would exclude work related factors as a substantial cause of the [injury]; or (2) directly eliminates any reasonable possibility that employment was a factor in causing the disability." ...
As a third step, once the employer has rebutted the presumption that the injuries are work related, the employee can prevail only if he proves his claim by a preponderance of the evidence.

The Board applied this three-step presumption: analysis to both Robinson's 1992 and 1996 work-related injuries.

B. Robinson Is Not Entitled to Workers' Compensation Benefits After May 1993 for Work-Related Injuries Sustained in September 1992. ‘

Robinson first argues that his September 1992 work injury was a substantial factor in causing his current discomfort. With regard to Robinson's September 1992 work injury, the Board concluded:

We agree with the SIME and conclude that the substantial evidence demonstrates the employee's September 1992 injury was a strain that resolved. We find the employee's need for medical care ended at the end of May 1998. We find his 1992 accident did not contribute to the employee's later medical conditions, need for treatment, or time off. We find the employee's subsequent "herniation" and back complaints were caused by the December 1998 car accident, which caused the employee to walk with an antalgic galit] and by his preexisting dise degeneration. We conclude the employee has received all compensation benefits due and owing to him from the 1992 accident. The employee's claim ... is denied and dismissed.

In support of this determination, the Board relied on testimony of Drs. Smith and Laycoe indicating that Robinson's need for medical care ended after May 1998. It also cited evidence that Robinson's back complaints decreased in 1998 with his weight loss through exercise. The Board considered Robinson's testimony that "he was feeling 'pretty good' before the December 1998 automobile accident, walking up to six miles per day for exercise and had lost 37 pounds." Additionally, the Board found Robinson not to be a credible witness, pointing to the fact that in his lawsuit against State Farm he asserted that "his 1992 work accident produced merely a 'muscle strain' and 'he did not need surgery prior to this [automobile] incident' The employee now seeks to be reimbursed again for those same expenses in these workers' compensation claims."

Robinson challenges the Board's decision. He contends that the record does not support Dr. Smith's opinion that the 1992 injury was "self-limited," and he seeks "TTD benefits from 1992 through August 1996" and "additional benefits for time loss and medical care from May 1993 until after his 1995 surgery." He argues that "[the 1992 injury triggered a weakness in [his] back that gradually developed over time, and was continually aggravated by his job as a bus driver." He asserts that "the weight of the evidence" indicates that the 1995 surgery and his current back pain are "directly related to this early accident and continuum of aggravations."

The Municipality does not contest the Board's finding that Robinson satisfied his burden of establishing a preliminary link between the 1992 and 1996 injuries and his employment. Thus, we turn to whether the Municipality "rebutted this presumption with 'substantial evidence that either (1) provides an alternative explanation which, if accepted, would exclude work related factors as a substantial cause of the [injury]; or (2) directly eliminates any reasonable possibility that employment was a factor in causing the disability.'" Because we are reviewing an administrative agency's decision and because this is a question of fact, we apply the substantial evidence standard. Therefore, we must determine whether the evidence presented by the Municipality, when viewed without consideration of Robinson's evidence to the contrary, is such that a reasonable mind would accept it as adequate to support the Board's conclusion that the work-related injury was not a substantial factor in Robinson's post-May 1993 condition. The Board found that the Municipality offered substantial evidence which rebutted the presumption of compensability. We agree.

The Board relied on Dr. Laycoe's February 1997 report, Dr. Smith's June 1998 report, and Dr. Stanford's October 1997 affida- - vit, to which he attached his February 1997 report, in concluding that substantial evidence indicated that Robinson's need for medical care related to the 1992 injury ended in May 1998. Dr. Laycoe offered his opinion that the 1992 slip injury caused Robinson to need treatment "following September, 1992, over a six week period with occasional followup doctor visits into the spring of 1993. I do not believe that the 1992 injury was a substantial factor in his condition in August of 1996 ... [or] in causing Robinson's L5-S1 herniation." Dr. Laycoe concluded: "The progression of the degenerative disc disease at LG-S1 is a result of the degenerative disease and the surgery of October, 1995, and this is the sole responsibility for his worsening back pain over the years." Similarly, Dr. Smith, the SIME, concluded: "I do not find a connection between the 1992 industrial injury that is substantial relative to the need for care after May, 1998, or for the surgery in 1995" and that the 1992 injury "rapidly cleared" and "was relatively self limited." Dr. Stanford explained in an October 1997 affidavit that

the September 1992. injury probably did not cause the herniation nor the subsequent disability and need for medical care and surgery. ... [The most likely cause[s] of Mr. Robinson's back pain, lumbar herniation and need for surgery [were] the injuries sustained by Mr. Robinson in the 1998 automobile accident ... and his pre-exist-ing obesity.

Substantial evidence supports the Board's finding that the Municipality rebutted the presumption of compensability by offering an alternative explanation for Robinson's 1995 surgery and current back pain-namely, the 1993 car accident. In addition to Dr. Stanford's opinion, the letters that Charles Coe, Robinson's attorney, wrote to State Farm concerning the 1998 car accident further support this alternative explanation. Coe notified State Farm by letter in October 1995 that Robinson planned to undergo 'back surgery and that "(hle did not need surgery prior to this incident."

Because the Municipality has overcome the presumption of compensability, the presumption drops out. To prevail, Robinson had to prove to the Board, by a preponderance of the evidence, that the 1992 work injury was a substantial factor in causing his need for medical treatment and disability after May 1998. "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of the [triers of fact] that the asserted facts are probably true."

Robinson points to Dr. Peterson's April 1997 report in support of his claim that the 1992 injury caused his current condition: ' -

I believe there is a high likelihood that his initial slip produced the initial dise disruption that gradually progresses to bilateral dise herniation with radiculopathy requiring microdisectomy. His motor vehicle accident may certainly have been a major contributing factor and, in fact, he probably had some degree of underlying dise degeneration, even preceding his slip on the bus steps.
... [AJt least part of this most likely is work-related and part of it should be assessed to the motor vehicle accident and some also should be considered pre-exist-ing due to degenerative disease.

Dr. Peterson's testimony establishes only that the 1992 injury was one cause of Robinson's condition, but not that it is a substantial cause. Moreover, as the Municipality points out, "even Dr. Peterson, Robinson's treating physician, could not say the work injuries were substantial factors in Robinson's condition, disability, impairment, need for medical treatment or in any need for retraining." In his deposition, Dr. Peterson explicitly rejected the theory that the 1992 injury was a substantial factor in Robinson's present condition. When asked whether the 1992 injury was a substantial factor in Robinson's inability to drive a bus today, Dr. Peterson responded "I can't say that it is a substantial factor. It may be a factor, but I can't really weigh it as substantial."

In addition, the Board concluded that Robinson was not credible because he claimed double recovery for his back injury. The Board's determination of a witness's credibility is given deference. The Board noted that in his third-party lawsuit, Robinson attributed his back injury solely to the car accident and claimed damages for his back surgery and related medical expenses. Robinson then sought reimbursement from the Municipality for those same expenses. He also offered "contradictory testimony ... that the December 1998 automobile accident 'didn't play any [part] in [his] subsequent back problems."

Because Robinson's treating physician, Dr. Peterson, does not advocate strongly the theory that Robinson's 1992 injury is a substantial factor in his continuing discomfort and because Robinson attributed his back problems to the 19983 car accident during his third-party lawsuit, we conclude that the Board did not err in finding that Robinson failed to prove his claim based on his 1992 injury by a preponderance of evidence. We affirm the Board's ruling that Robinson received all compensation benefits due and owing to him from the 1992 accident.

C. Robinson Is Not Entitled to Workers' Compensation Benefits After November 1996 for Work Related Injuries Sustained in August 1996.

With regard to the August 6, 1996 work injury claim, the Board held that Robinson "has received all workers' compensation benefits due and owing [from August 6, 1996 through November 6, 1996]. Regarding the employee's claim that he is entitled to additional benefits after November 6, 1996, we find he has failed to meet his burden of proof." Citing evidence from Dr. Layeoe's report, the Board found that Robinson "suffered a lumbar strain in August 1996 that resolved in November 1996 and left no residuals." Thus, the Board found "no objective medical evidence [that] the employee suffered any permanent impairment due to this accident and there is no medical testimony that the employee's 1996 work accident was a substantial factor in the employee's need for medical treatment or additional benefits after November 6, 1996."

Robinson argues that his increased symptoms after the 1996 work injury are compen-sable as an aggravation of his preexisting condition. He claims that he should be awarded "temporary time loss benefits after August 1996 for the periods where Dr. Peterson restricted him from working, and all medications prescribed by Dr. Peterson, and care provided, including the expenses related to the 1996 MRI." Robinson maintains that he should be entitled to TTD and compensation for medical care expenses "until his own physician rates him as medically stable, and then he is entitled to another PPI rating for any increased impairment."

Here, as with the 1992 injury, the Municipality does not appear to challenge the Board's finding that Dr. Smith's report establishes a preliminary link between the 1996 work accident and Robinson's post-November 1996 back condition. Dr. Smith noted that "[the 1996 aggravation after surgery had already been performed, could be ... considered a factor relative to his current presentation." Because this evidence establishes the preliminary link between Robinson's work and his current condition, we turn to whether the Municipality has overcome the presumption of compensability.

The Board relied on the October 1997 report of Dr. Laycoe in concluding that the Municipality had overcome the presumption of compensability. Dr. Laycoe stated that he "do[es] not believe that the [1992 and 1996] work injuries remain a substantial factor in [Robinson's] condition presently.... [Olne would anticipate the effects of the 1996 strain would have only lasted a period of weeks no greater than six to eight on a more probable than not basis." According to Dr. Layeoe, Robinson's "back pain would have worsened irrespective of the event of August, 1996. ... The progression of the degenerative dise disease at L5-S1 is a result of the degenerative disease and the surgery of October, 1995, and this is the sole responsibility for his worsening back pain over the years." This evidence rebuts the presumption of compensability because it establishes an alternative cause for his present condition-the progressive degenerative dise disease and surgery-and "directly eliminates any reasonable possibility that employment was a factor in causing the disability."

The burden thus shifts to Robinson to prove his 1996 work injury claim by a preponderance of the evidence. Robinson maintains that "[the increase in [his] symptoms is compensable" and that "all physicians agreed" that his symptoms increased after the 1996 injury. The Municipality does not dispute that the 1996 injury temporarily increased Robinson's symptoms. The physicians who examined Robinson all agreed that the 1996 injury made his preexisting condition temporarily symptomatic but caused no structural changes. The issue is whether those symptoms continued after November 1996.

Temporary total disability benefits are not available to employees once they become medically stable. Medical stability must be measured by objective evidence:

"[MJjedical stability" means the date after which further objectively measurable improvement from the effects of the com-pensable injury is not reasonably expected to result from additional medical care or treatment, notwithstanding the possible need for additional medical care or the possibility of improvement or deterioration resulting from the passage of time; medical stability shall be presumed in the absence of objective measurable improvement for a period of 45 days; this presumption may be rebutted by clear and convincing evidence.

The Board concluded that the Municipality offered substantial evidence to show that Robinson reached medical stability as of November 6, 1996. Drs. Layeoe and Smith both concluded that Robinson became medically stable from the effects of the back sprain by November 1996.

Although Dr. Peterson disagreed with Drs. Laycoe and Smith and offered his opinion that Robinson was not medically stable as of November 1996, it is not our role to reweigh the evidence. Because substantial evidence supports the Board's finding that Robinson failed to prove his claim for benefits from his August 1996 work injury by a preponderance of the evidence, we affirm the Board's decision to deny his claim for additional TTD benefits stemming from the August 1996 injury.

In addition to temporary total disability, Robinson also argues that he is entitled to partial permanent impairment benefits stemming from the 1992 and 1996 work-related accidents. A claimant is entitled to partial permanent impairment if the injury is "partial in character but permanent in quality." Dr. Smith concluded that although Robinson suffers from a 10% whole person permanent impairment, that impairment is not related to either the 1992 or 1996 injury, and that Robinson became medically stable in November 1996. Dr. Stanford rated Robinson's PPI at 10% and could not attribute this rating to the 1992 injury. Dr. Peterson rated Robinson's PPI at 18.5% because "he's at high risk for future problems, further increased risk of disk herniations, [and] recurring back injuries," and he recommended that Robinson be retrained. When asked whether the 1992 injury was a substantial factor in causing Robinson's permanent impairment, Dr. Peterson stated that "this whole process is multifactorial." Substantial evidence supports the Board's finding that Robinson failed to establish by a preponderance of evidence that his work injuries were a substantial factor in his permanent impairment. Accordingly, we affirm the Board's denial of PPI benefits.

D. Robinson Failed To Adequately Raise the Issue of Whether His Daily Work as a Bus Driver Aggravates His Back Condition.

In his hearing brief to the Board, Robinson argued that "there is no question that [his] driving for the city aggravated his back ..., which would further warrant an award of benefits" The Board ruled that Robinson had not properly raised this issue:

The employee never filed a claim seeking benefits for such an occupational aggravation and there was little argument or evidence presented regarding this allegation. It is not clear to us whether the employee is claiming cumulative trauma or rather alleging that specific incidents caused new claims for time loss and the need for further medical care. The employer appropriately relied on the employee's claims in preparing its defenses and accordingly did not obtain a medical opinion regarding whether or not the employee's work as a bus driver was a substantial factor aggravating his condition.

Because the Board did not have enough evidence to properly evaluate the issue of occupational aggravation, it declined to rule on that issue. Instead, it retained jurisdiction to consider the issue and instructed Robinson to file a workers' compensation claim form specifically raising that issue, if he so desired. We agree with the Board that if Robinson's daily work, as opposed to the 1992 and 1996 work injuries, is an aggravating condition for him, he needs to articulate that in a new workers' compensation claim. We hold that it was not an abuse of discretion for the Board to require a new claim.

E. The Board Did Not Err in Denying Robinson's Motion for Reconsideration.

Alaska Statute 44.62.540(a) provides that an agency "may order a reconsideration of all or part of the case on its own motion or on petition of a party." The Board denied reconsideration on all three of the issues raised in Robinson's motion for reconsideration. Robinson argues that the Board erred in denying reconsideration on whether the Municipality is entitled to notification or offset of benefits from August to November 1996 and on whether he is entitled to additional benefits.

With regard to the offset issue, the Board asserted in its final decision and order, "Itlo the extent the employee pursues additional compensation benefits the [employer] may be entitled to a credit, but we do not address the issue at this time." The Board concluded in its order on reconsideration: "Since we did not order any credit or declare the employer was due a credit, and we expressly declared we would not address the issue, there is nothing for us to reconsider." Neither party raised the issue of whether the Municipality was entitled to a credit in the hearing briefs, and the Municipality never raised it at the workers' compensation hearing. Because the issue was not briefed by the parties, it was not squarely before the Board, and the Board did not err in declining to address the issue. And as the Municipality correctly points out, "even if the Board somehow erred in its comments, the error is harmless as no decision was rendered and the matter was left for the parties to raise and argue in the future."

With regard to the 1996 compensation issue, we affirm the Board's denial of reconsideration because substantial evidence, as discussed above with regard to the 1996 injury, supports its decision.

v. CONCLUSION

Because Robinson failed to establish his claims by a preponderance of the evidence, we AFFIRM the Board's denial of additional workers' compensation benefits. In addition, because it was not clear error for the Board to decline to rule upon the issue of whether Robinson's daily work as a bus driver aggravates his condition, we AFFIRM its decision to require Robinson to file a new claim that addresses this issue.

      . Because of Mr. Robinson's size, the MRI machine in Anchorage could not accommodate him, and he had to travel to Stanford University to have the MRI done.

      . 914 P.2d 1276, 1279 (Alaska 1996).

      . DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).

      . Arnesen v. Anchorage Refuse, Inc., 925 P.2d 661, 664 & 666 (Alaska 1996) ("Substantial evidence is that which a reasonable mind, viewing the record as a whole, might accept as adequate to support the Board's decision.") (citation omitted).

      . Childs v. Kalgin Island Lodge, 779 P.2d 310, 313 (Alaska 1989).

      . Id. at 315.

      . DeYonge, 1 P.3d at 94.

      . Bouse v. Fireman's Fund Ins. Co., 932 P.2d 222, 231 (Alaska 1997).

      . 21 P.3d 813, 816 (Alaska 2001) (citations omitted).

      . Id.

      . Id. at 815.

      . Id. at 815-16.

      . See Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992) ("It has always been possible to rebut the presumption of compensability by presenting a qualified expert who testifies that, in his or her opinion, the claimant's work was probably not a substantial cause of the disability.... [SJuch testimony is affirmative evidence that an injury is not work connected.") (citations omitted).

      . Temple, 21 P.3d at 816.

      . Saxton v. Harris, 395 P.2d 71, 42 (Alaska 1964).

      . AS 23.30.122 ('The board has the sole power to determine the credibility of a witness. A finding by the board concerning the weight to be accorded a witness's testimony, including medical testimony and reports, is conclusive even if the evidence is conflicting or susceptible to contrary conclusions."); Norcon, Inc. v. Alaska Workers' Comp. Bd., 880 P.2d4 1051, 1054 (Alaska 1994) (''Deference should be given to the Alaska Workers' Compensation Board's determination of witness credibility.").

      . Temple, 21 P.3d at 815-16; see also Big K Grocery v. Gibson, 836 P.2d 941, 942 (Alaska 1992); Safeway, Inc. v. Mackey, 965 P.2d 22, 27 (Alaska 1998).

      . Temporary total disability benefits are governed by AS 23.30.185:
      In case of disability total in character but temporary in quality, 80 percent of the injured employee's spendable weekly wages shall be paid to the employee during the continuance of the disability. Temporary total disability benefits may not be paid for any period of disability occurring after the date of medical stability.

      . AS 23.30.395(21).

      . In an October 1997 letter, Dr. Peterson wrote that Robinson was not medically stable as of that date. He elaborated: "[Robinson] has stabilized since driving discontinued. If permanently reassigned, or retired from driving, [Robinson] would be considered stable as [symptoms] are exacerbated & [Robinson] deteriorates [with] driving."

      . Robinson argues that because he went to physical therapy after November 1996, he was receiving "additional medical care" within the meaning of AS 23.30.395(21) and so he could not be declared medically stable. However, the fact that he received treatment is insufficient evidence of medical instability absent a reasonable expectation of objectively measurable improvement from that care. AS 23.30.395(21). The physical therapist treating Robinson noted that his "[slubjective complaints do not equate [with] objective changes" and that "[slecondary gain issues may come into play." Given this evidence that Robinson may be malingering, the Board did not err in concluding that he was medically stable due to the lack of objective evidence of continuing improvement.

      . AS 23.30.190.

      . This is consistent with the Municipality's argument in its hearing brief: "The employer does not dispute that the employee may be unable to work as a bus driver for the Municipality due to his physical condition, which includes narcolepsy, obesity, low back pain, diverticulitis, carpal tunnel, hernias and a host of other non-work related conditions. The employer does not believe, however, the 1992 and 1996 injuries are substantial factors in the need to change occupa- - tions."

      . The Board's statement that the employer may be entitled to a credit was a gratuitous remark with no legal effect.

      . Legge v. Greig, 880 P.2d 606, 609 (Alaska 1994) ("An issue given only cursory treatment in a brief will be treated as abandoned.").

      . We note that while substantial evidence does exist to support the Board's decision, its assertion that "[we could find no objective medical evidence the employee suffered any permanent impairment from his 1996 accident, and there was no medical testimony the employee's 1996 work accident was a substantial factor in the employee's need for medical treatment or additional benefits after November 6, 1996" seems overstated. The Board recognized in its first decision that some evidence suggested that Robinson's current discomfort stems from the 1996 work-related accident: "When asked if he could say the employee's August 1996 injury was a substantial factor in the employee's continuing need for medical treatment, Dr. Peterson testified ... 'I can't discount it.'" Robinson's situation is aggravated, and he is permanently impaired. To say "no objective medical evidence" exists ignores evidence in the record.


author: STEWART, Judge. MANNHEIMER, Judge,

text:
    Mark C. STRUMSKY, Appellant, v. STATE of Alaska, Appellee.
    No. A-8098.
    Court of Appeals of Alaska.
    May 9, 2003.

      Christine S. Schleuss, Anchorage, for Appellant.
    Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Bo-telho, Attorney General, Juneau, for Appel-lee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

A jury convicted Mark C. Strumsky of three counts of second-degree sexual abuse of a minor. Strumsky argues that the superior court erroneously admitted hearsay testimony of the victim's complaints to a friend, a teacher, a school nurse, and the detective who investigated the case. He also argues that the superior court improperly barred him from presenting evidence to show the proper context of Strumsky's admission that the vietim would not lis.

From our review of the record, we conclude that the superior court did not prevent Strumsky from presenting evidence showing the context of his admission that the victim would not lie. We also conclude that the victim's statements to third parties were admissible. Therefore, we affirm Strumsky's convictions.

Background facts and proceedings

In October 2000, Laurie Craft, a teacher at Ocean View Elementary School, showed her class a video about inappropriate touching. Ten-year-old C.B. approached Craft, told her "[Slomebody's been touching me," and then began to ery. C.B. told Craft "the neighbor" was touching her. Craft took C.B. to see Chris Boone, the school nurse.

C.B. told Boone her neighbor "Mark" had touched her "top and bottom," "four or five times." Boone testified that C.B. was very upset and "sobbing." As required by law, Boone contacted the Division of Family and Youth Services.

Detective Michelle Bales of the Anchorage Police interviewed C.B. on October 19, 2000. C.B. was not upset or erying. C.B. identified her next-door neighbor, Strumsky, as her abuser. She told Bales that Strumsky abused her three separate times in his home. According to C.B., Strumsky fondled her breasts twice in two of the incidents and during the third, put his hands down her pants and fondled her genitals. C.B. reported that she had told her friend, C.K., about the abuse.

Bales obtained a Glass warrant to record conversations between C.B.'s father and Strumsky. C.B.'s father contacted Strumsky by telephone and in person. During the recorded conversations, Strumsky repeatedly denied any misconduct with C.B., but when asked by C.B.'s father if C.B. was lying, Strumsky responded: "No, [C.B.] doesn't lie."

The grand jury indicted Strumsky on three counts of sexual abuse of a minor.

Were C.B.'s out-of-court statements to others inadmissible hearsay?

Moments before the jury was brought in for opening statements, Strumsky's attorney told Superior Court Judge Larry D. Card that he objected to the expected testimony of C.K., the twelve-year-old friend of C.B.'s who was scheduled to testify. The prosecutor told the judge that C.K.'s testimony was admissible under Greenway v. State because it was a first complaint about a sexual assault. Judge Card indicated that C.K.'s testimony would be admissible if the State showed it was a first complaint. Strumsky then questioned how Craft's or Boone's testimony about C.B.'s reports would be admissible if C.K. heard the first complaint. The prosecutor responded that she expected to offer Craft's testimony to explain why Craft took C.B. to the nurse. Judge Card observed that this appeared to be a non-hearsay purpose for the evidence. The prosecutor was not sure whether Boone, the school nurse, would be called and the court did not discuss her testimony further except to note that it appeared that the nurse's testimony would not be part of the State's opening case. The State described C.B.'s interview with Detective Bales as a detailed report. Judge Card described it as an interview but did not discuss her testimony further. The parties agree that this brief discussion was sufficient to preserve a hearsay objection to testimony from C.K., Craft, Boone, and Bales.

In the State's opening statement, the prosecutor said she expected to call C.B., C.K., Boone, Craft, and Bales as witnesses. The prosecutor told the jury to pay particular attention to C.B.'s testimony "because, really, the case does rest solely on her report[.]"

For his part, Strumsky said that the case would be a "swearing contest." "That means you are going to have one person swearing to one thing, and one person swearing to another, with only other peripheral evidence." Strumsky then predicted that he would show that CB's credibility was questionable: "[Blased on her other sworn statements and unsworn statements, that were taped, these are the types of inconsistencies that I expect to come up in her testimony." Strumsky then described a laundry list of inconsistencies in C.B.'s previous statements, including where the abuse occurred, when the abuse occurred, and how many times the abuse occurred.

C.B. was the first witness called. She testified that Strumsky had fondled her breasts under her clothes two different times. She also testified that a third time, Strumsky squeezed her breasts, unzipped her pants, and rubbed her "private parts" (her term for her genitals) underneath her clothes by moving his hands back and forth. C.B. said that her friend, C.K., was the first person she told about Strumsky's conduct. She contacted Craft after seeing the "safety" video at school about good and bad touching, and then spoke to Boone, the nurse, about what happened. She also spoke to Bales after telling her parents.

Strumsky cross-examined C.B. by pointing out inconsistencies in her interview with Detective Bales, her grand jury testimony, and the testimony she had just offered to the court. Strumsky questioned her repeatedly about the difference between a truth and a lie. He asked her several times if she had told the truth when she talked to C.K. and Detective Bales. He asked her if the nurse would lis about C.B.'s report. Strumsky asked if she had told ten or fifteen different stories about the abuse.

C.K. was the next witness. C.K. testified that C.B. told her during the summer that P.S.'s father (the defendant) was "touching her from the waist down" in "inappropriate places." Under Greenway, a victim's first report of a sexual assault is admissible.

The permissible seope of first-report evidence is discussed in several cases. In Greenway, the first-report evidence included the victim's complaint to her mother shortly after the July sexual assault and her complaint to a school counselor after school started in September.

We first discussed the appropriate scope of this evidence in Nitz v. State. In that case, the pre-adolescent victim's mother and a neighbor asked the victim whether anyone was abusing her. The victim identified her stepfather as the perpetrator of several acts of abuse. We ruled that under Greenway, a trial court could allow a witness to testify about reasonable details included in a first report, particularly when the identity of the perpetrator was not an issue.

In Nusunginya v. State, two witnesses testified about a child's complaint of sexual abuse by her father: the victim's ten-year-old cousin and the victim's aunt, who the victim told two days after she told the cousin. We upheld the admission of the victim's statement to her cousin as a first complaint, noting that it did not provide any significant detail beyond the identity of the perpetrator. We validated the discussion in Nitz that recognized the trial court's discretion to allow admission of details of a first complaint so that a jury may obtain a fair understanding of the context in which the complaint was made. We noted that there were no witnesses to the assault and very little evidence for the jury to consider. The cousin's testimony, which went no further than that of the victim who had already testified, provided a context in which the complaint could be viewed.

These same considerations appear to apply to the testimony of Craft and, perhaps, Boone. In Greenway, the court upheld the admission of the victim's complaint to the school counselor. This complaint resulted in official action, as did C.B.'s contact with her teacher who immediately brought C.B. to the nurse. Both the teacher and the nurse testified at the trial after C.B. had testified, and neither witness provided significant detail of C.B.'s statement beyond a potential identification of Strumsky. Aceording. to Craft, C.B. identified "the neighbor" and, according to Boone, C.B. said her neighbor "Mark" had touched her. Both Craft and Boone described C.B.'s demeanor when she was reporting the problem: C.B. was crying and "sobbing."

Even if Craft's and Boone's testimony was not admissible under Greenway, we must evaluate whether their testimony is admissible as a prior consistent statement, a rationale adopted by Judge Card during trial. In Nitz, we addressed the admissibility of prior consistent statements in cases involving sexual abuse of children. We found reversible error in that case because we concluded the trial court erroneously admitted hearsay statements of the victim as prior consistent statements. We expressed particular concern about the prejudice caused when the State calls several witnesses who repeat the victim's out-of-court complaint:

[WJhere a parade of witnesses is allowed to offer evidence of prior consistent statements before the victim testifies and is impeached, the jury may be tempted to substitute the credibility of the third-party witnesses for the eredibility of the victim. Because the third-party witness will often be viewed as accepting-either implicitly or explicitly-the facts asserted in the vie-tim's prior statements, allowing them to testify and to present evidence of the prior statements out of order-before the jury is able to discern that the legitimate purpose of the evidence is to counter an attack on the victim's eredibility-openly invites the jury to accept the witness' view of the victim's credibility before the victim even testifies. This class of prejudice is particularly great and is particularly susceptible to abuse in cases such as the present one: here, the evidence of guilt consisted almost entirely of the testimony of an unsophisticated and relatively inarticulate child; her prior statements were presented to the jury through a series of articulate adult witnesses, whose ranks included credentialed professionals with extensive experience in dealing with sexual assault cases.[]

We noted that, under the traditional approach of Evidence Rule 801(d)(1)(B), a witness's prior consistent statement is admissible only under the limited cireumstances of rebutting a charge of recent fabrication or improper influence or motive, and only when the prior statement was made before the witness's motive to testify falsely first arose.

But we expanded the scope of admissibility for prior consistent statements in cases involving sexual abuse of children. While retaining the traditional rule against the admission of a witness's prior consistent statements until after that witness had testified and been impeached, we held that prior consistent statements could be admitted even when they were made after the witness's motive to testify falsely had already arisen. Under Nitz, admissibility is predicated on an initial determination that the prior statement, regardless of when it arose, is "actually. relevant to rebut an express or implied charge ... of recent fabrication or improper influence or motive. In addition, the probative value of the evidence must outweigh its potential for prejudicial impact. Finally, if the out-of-court statement was made after the witness's alleged motive to testify falsely had already arisen, the prior statement may be considered only for the limited purpose of determining the credibility of the witness.

Here, C.B.'s statements to Craft and Boone, as well as her out-of-court statements to Bales, are admissible under the Nite rationale of prior consistent statements from child sexual abuse victims. C.B. was the first witness in the case, and as Strumsky announced in opening statement, he attacked her credibility with several references to her prior statements. Although Craft's, Boone's, and Bales's testimony about C.B.'s prior consistent statements was only admissible for the limited purpose of determining C.B.'s credibility, Strumsky did not request such a limiting instruction from Judge Card. Even so, the thrust of the State's argument to the jury was that C.B.'s out-of-court statements were useful to evaluate the credibility of her testimony. Furthermore, unlike the relatively inarticulate victim in Nitz, the transeript of C.B.'s testimony reflects an articulate child who responded well to complicated questioning, and, if she did not understand the vocabulary or the concepts used by the lawyers, she requested clarification.

Our review of the record also shows that Judge Card could properly conclude that the probative value of the prior-consistent-statement evidence outweighed its prejudicial impact. Accordingly, we conclude that Judge Card did not abuse his discretion when he admitted C.B.'s prior consistent statements.

Did the superior court bar Strumsky from placing his admission in context?

While Detective Bales recorded Strumsky's conversation with C.B.'s father, Bales heard C.B.'s father ask Strumsky whether C.B. was lying and Strumsky responded, "No, [C.B.] doesn't lie." At trial, Bales testified that she heard this exchange. The State also played that portion of the tape recording. Strumsky objected and maintained that the entire recording should be played to the jury. Judge Card conceded that Strumsky was entitled to show "some context." Strum-sky reiterated that he was entitled to play the entire recording of the conversation. Because he consistently denied any misconduct with C.B. during the conversation, Strumsky argued that the jury would draw an unfair inference if they heard only the single question and answer in isolation.

Evidence Rule 106 states that when one party introduces a part of a document or recording, an adverse party "may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it." The commentary to Evidence Rule 106 explains that an adverse party had the right, at common law, to introduce the remaining relevant portions of the document. The significant language in Rule 106 is the phrase "at that time":

[When a substantial amount of] time elapses between the offer of part of a statement and the offer of the remainder, the jury may become confused or find it difficult to reassess [the] evidence that it ... heard earlier in light of [the] subsequent material. Rule 106 creates a right to require immediate admission of ... all relevant portions. It is designed to enable one party to correct immediately any misleading impression created by another party who offers part of a statement out of context.[]

We discussed Rule 106 in Stoneking v. State. We stated:

The limited purpose of ARE. 106 is to allow a party to admit omitted portions of a partially admitted statement only when and only to the extent that the omitted portions are necessary to provide context to the admitted portions, or to explain or clarify them. The rule does not make admissible statements that would otherwise be inadmissible; it is meant only to allow contemporaneous admission of evidence that would ordinarily not be admissible until later stages of the trial.[]

In this case, Strumsky asserted that throughout his conversation with C.B.'s father, he never admitted abusing C.B. In order to provide the context of his statement and to explain his comment about C.B.'s truthfulness, Judge Card recognized that he should be permitted to play some portion of the recording. Even though the purpose of the rule is to admit the evidence to explain the admission or to provide context, Judge Card ruled that Strumsky would not be permitted to play any of the recording until Strumsky testified in his own case.

Nothing in Evidence Rule 106 requires that a defendant testify when a defendant requests, in fairness, to admit additional portions of a recorded statement to provide context or an explanation of an admission. As the commentary to the rule indicates, the rule requires the "immediate admission" of all relevant portions. Nonetheless, Strum-sky took the stand and explained the context of the tape recording. Without objection, Strumsky testified that C.B.'s father asked him repeatedly whether he had touched C.B. and that he consistently denied it.

However, after Strumsky took the stand, he did not ask Judge Card to play all or part of the recording to explain or show the context of his admission. Strumsky asserted other reasons that the tape might be played: during a portion of the conversation with C.B.'s father, the two mentioned sexual misconduct in the church C.B.'s family attended. But Judge Card pointed out that speculative evidence about other perpetrators was not a sufficient reason to play the entire tape. At the end of Strumsky's direct testimony, the prosecutor asked the court under what conditions Strumsky could play the tape. The court told Strumsky that he could admit relevant portions of the tape. But Strumsky did not seek to admit the recording or any portion of it and Judge Card did not deny Strumsky's request to play the tape. Because Strumsky did not renew his request to admit the recording, he has not preserved this issue.

Conclusion

The judgment of the superior court is AFFIRMED.

MANNHEIMER, Judge, concurring.

MANNHEIMER, Judge,

concurring.

I write separately to explain my views on the hearsay issues in this case.

C.B.'s report of sexual abuse to her school friend, C.K., was properly admitted under the "first complaint" exception to the hearsay rule. When C.B. confided in C.K., this was C.B.'s first report of the sexual abuse; moreover, C.K.'s description of the report was fairly short and did not include many details.

With regard to C.B.'s later reports to her teacher and to the school nurse, the trial judge ruled that C.B.'s statements to these two adults were admissible to establish the course of the investigation. This was a permissible basis for the testimony; but if this was the sole ground for allowing the teacher and the school nurse to testify, they should not have been allowed to give the details of C.B.'s report-only that C.B. claimed to have been sexually abused, and that they alerted the authorities.

If I were writing on a clean slate, I would be inclined to expand the "first complaint" exception to the cireumstances of this case: cireumstances where a child victim first confides the sexual abuse to a peer, and then later confides in an adult who is in a position to help. (In the present case, C.B.'s reports to her teacher and the school nurse took place within a span of minutes; they were essentially a single continuing report.) But even under a strict construction of the "first complaint" rule, I conclude that any error in allowing the teacher and the school nurse to recite the details of C.B.'s report does not require reversal of Strumsky's conviction.

The testimony of both the teacher and the school nurse was fairly short, and neither of them offered many details of the offense. The small detail that these two witnesses offered was nothing compared to the amount of detail contained in C.B.'s own testimony, which went on for hours and which preceded the testimony of these other witnesses. Further, it is clear from the record that C.B. was a competent witness whose credibility could be judged in the same manner as typical witnesses. C.B. was not an inarticulate youngster whose account of the abuse was presented primarily through the testimony of adults. Thus, any arguable error in allowing C.B.'s teacher and her school nurse to cursorily repeat C.B.'s report of sexual abuse was harmless.

This leaves the question of whether the trial judge should have admitted the testimony of Detective Bales. Strumsky's attorney objected on hearsay grounds when Bales was asked to describe C.B.'s report of sexual abuse. Because the prosecutor responded only with a general assertion that Bales's testimony would involve C.B.'s "prior consistent statement", with no indication of what particular consistent thing C.B. had said to Bales, the defense attorney's objection probably should have been sustained at that point. However, Bales's free-form description of C.B.'s report was cursory. The significant details of C.B.'s report were elicited when the prosecutor repeatedly asked Bales to describe the particular content of C.B.'s prior statement on points previously raised by the attorneys during the cross-examination and re-direct examination of C.B.

C.B. was the State's first witness. At one point during the direct examination of C.B., the prosecutor refreshed C.B.'s memory by having her read a portion of the transcript of her statement to Detective Bales. However, it was during cross-examination that C.B.'s statement to Detective Bales began to loom large in this case.

The defense attorney's first questions to C.B. were, "Do you recall when you were talked to by Michelle Bales? She had an interview with you back in November. And they taped that [interview], didn't they?" The defense attorney then launched into a cross-examination in which C:B. was repeatedly directed to refer to, and sometimes read aloud, portions of her interview with Bales and her prior testimony to the grand jury. In response to this cross-examination, the prosecutor likewise repeatedly asked C.B. to refer to her statement to Bales in order to refresh her memory during re-direct.

Later in the trial, when Detective Bales was called to testify, her testimony was to a large extent simply a continuation of the process of impeachment and rehabilitation that began when C.B. was on the stand. The prosecutor repeatedly asked Bales about the content of C.B.'s prior statement, but the prosecutor's questions were directed to the particular details that had figured prominently in the cross-examination and re-direct examination of C.B. In fact, the prosecutor's questions were so detailed that Bales could not answer from memory. Again and again-with both attorneys' blessing-Bales was forced to consult the transeript of C.B.'s statement. Indeed, when Bales's answers deviated too much from the transcript of C.B.'s statement, Strumsky's attorney objected and asked the trial judge to direct Bales to read from the transcript rather than paraphrasing or characterizing C.B.'s words.

Given these circumstances, Bales's testimony was properly admissible to establish the content of C.B.'s interview on the particular points raised during the cross-examination and re-direct examination of C.B.-not under the theory that Bales was relating C.B.'s "prior consistent statements", but rather because C.B. had been impeached with apparent inconsistencies and omissions in her interview with Bales, and Bales could clarify exactly what C.B. had said or failed to say. In other words, the primary relevance of Bales's testimony was not to assert the truth of C.B.'s prior statements, but rather to establish what those prior statements were.

      . AS 1141.436(a)(2).

      . AS 47.17.010-.020.

      . See State v. Glass, 583 P.2d 872 (Alaska 1978), on reh'g, 596 P.2d 10 (Alaska 1979) (holding that the Alaska Constitution requires police to obtain judicial authorization before secretly recording a person's private conversations).

      . 626 P.2d 1060, 1060-61 (Alaska 1980).

      . Greenway, 626 P.2d at 1060-61.

      . Id. at 1060.

      . 720 P.2d 55 (Alaska App.1986).

      . Id. at 58.

      . Id.

      . Id. at 63.

      . 730 P.2d 172 (Alaska App.1986).

      . Id. at 173.

      . Id.

      . Id. at 174.

      . Id.

      . Id.

      . Greenway, 626 P.2d at 1060.

      . Nitz, 720 P.2d at 58.

      . Id. at 68.

      . Id. at 70-71.

      . Id. at 64.

      . Id. at 67.

      . Id. at 68 (internal quotes omitted).

      . Id.

      . Id.

      . ARE. 106.

      . Commentary to Alaska Evidence Rule 106.

      . 800 P.2d 949 (Alaska App.1990).

      . Id. at 951-52 (citations omitted).

      . See Smithart v. State, 988 P.2d 583, 586-87 (Alaska 1999); Marrone v. State, 359 P.2d 969, 984-85 n. 19 (Alaska 1961).

      . See Russell v. State, 934 P.2d 1335, 1344 (Alaska App.1997) (holding that even if the detail offered by a "first complaint" witness exceeded the proper scope of this hearsay exception, "the error was harmless [because the victim] had already testified to all of the details mentioned by [the witness]"). See also Kosbruk v. State, 820 P.2d 1082, 1084 (Alaska App.1991) (noting that "there has been a marked trend toward relaxation of the traditional restrictions governing admission of evidence of the victim's first complaint", and that "[mJore recent decisions have recognized the appropriateness, within the reasonable limits of the trial court's discretion, of allowing details of a first complaint of sexual assault to be admitted for the purpose of enabling the jury to obtain a fair understanding of the circumstances under which the complaint was made").

      . See Horton v. State, 758 P.2d 628, 631 (Alaska App.1988) (finding that the arguably inadmissible hearsay accounts of the victims' statements "had little impact on the case" because the adolescent victims "were competent witnesses and that the jury was able to judge their credibility").


author: MANNHEIMER, Judge.

text:
    Walt HERREID, Appellant, v. STATE of Alaska, Appellee.
    No. A-8341.
    Court of Appeals of Alaska.
    May 9, 2003.
    Nelson Traverso, Law Offices of Nelson Traverso, Fairbanks, for Appellant.
    Corinne M. Vorenkamp, Assistant District Attorney, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Walt Herreid was indicted for first-degree and second-degree sexual assault. He ultimately reached a plea bargain with the State; under the terms of this bargain, Herreid pleaded no contest to a single misdemeanor count-attempted third-degree sexual assault.

Even though Herreid was convicted of a misdemeanor, this misdemeanor is nevertheless classified as a "sex offense" for purposes of the Sex Offender Registration Act. Accordingly, Herreid is required to register and to report annually for a period of 15-years.

In this appeal, Herreid contends that the Sex Offender Registration Act is unconstitutional because it amounts to an improper infringement by the legislative branch of government into sentencing matters that are entrusted to the judicial branch.

Herreid contends that the reporting requirement imposed by the Act is a punishment for his crime-and that, because the reporting requirement is a punishment, it can be analogized to a term of imprisonment. Herreid points out that sentencing courts traditionally have the power to impose an individualized term of imprisonment on an offender, based on the court's assessment of the offender's level of dangerousness and the offender's prospects for rehabilitation. Her-reid argues that a sentencing court must likewise have the power to impose an individualized sex offender reporting requirement-the power to reduce the statutory 15-year reporting period if the court concludes that an individual offender's level of dangerousness and prospects for rehabilitation do not warrant such a lengthy reporting period. Based on this reasoning, Herreid concludes that when the legislature enacted a statute imposing a uniform 15-year reporting requirement on all sex offenders, the legislature overstepped its constitutional powers and impermissibly infringed on the prerogatives of the judicial branch.

Herreid's arguments are substantially undermined by two recent decisions of the United States Supreme Court. In Smith v. Doe, - U.S. -, 123 S.Ct. 1140, 1154, 155 L.Ed.2d 164 (2003), the Supreme Court held that Alaska's Sex Offender Registration Act did not impose a eriminal "punishment"; rather, the Act is a civil regulatory measure. (This Court earlier reached the same conclusion in Patterson v. State, 985 P.2d 1007, 1011-13 (Alaska App.1999).)

Because the Sex Offender Registration Act is a regulatory measure, the registration and reporting requirements imposed by the Act are not part of a defendant's sentence. Peterson v. State, 988 P.2d 109, 115 (Alaska App.1999). A sentencing court has no power to exempt a defendant from the requirements of the Act-nor, for that matter, does a sentencing court have the power to impose sex offender registration and reporting on a defendant whose crime does not qualify as a "sex offense" under AS 12.68.100(1) or (6). See Whitehead v. State, 985 P.2d 1019, 1021 (Alaska App.1999).

Moreover, in Connecticut Dept. of Public Safety v. Doe, - U.S. -, 123 S.Ct. 1160, 1162-63, 1164-65, 155 L.Ed.2d 98 (2003), the United States Supreme Court implicitly rejected Herreid's argument that the length of the reporting requirement must be modifiable, depending on the individual offender's level of dangerousness. The Supreme Court held that persons who are subject to registration and reporting requirements based on their prior conviction for a sex offense have no due process right to a pre-registration opportunity to prove that they are not a danger to the public.

The Court pointed out that Connecticut's registration requirement was "based on the fact of previous conviction, not the fact of current dangerousness" For this reason, the Court concluded that Connecticut had no due process obligation to give sex offenders a chance to prove their lack of dangerousness:

[The fact that [the] respondent seeks to prove-that he is not currently dangerous-is of no consequence under Connecticut's Megan's Law.... [The law's requirements turn on an offender's conviction alone-a fact that a convicted offender has already had a procedurally safeguarded opportunity to contest.... No other fact is relevant to the disclosure of registrants' information.
Plaintiffs who assert a right to a hearing under the Due Process Clause must show that the facts they seek to establish in that hearing are relevant under the statutory scheme. Respondent cannot make that showing here.

Id., - U.S. at -, 123 S.Ct. at 1164, 1165. Based on these two recent decisions of the United States Supreme Court, and based on our own prior decisions in Patterson, Peterson, and Whitehead, we reject Herreid's constitutional challenge to the Sex Offender Registration Act. The legislature's decision to require sex offenders to register and to report on a regular basis for a specified period of time does not violate the separation of powers between the legislative and judicial branches of government.

The judgement of the superior court is AFFIRMED.

      . AS 11.41.425(@a).

      . See AS 12.63.100(6)(C)@.

      . See AS 12.63.010(b) (duty to register); AS 12.63.010(d)(1) (duty to annually report); AS 12.63.020(a)(2) (requiring an offender convicted of a single, non-aggravated sex offense to report for 15-years).

      . Connecticut Dept. of Public Safety v. Doe, - U.S. at -, 123 S.Ct. at 1163.