explaining that "if appellate review is to be meaningful, a party asserting error in [agency] proceedings must, by making an offer of proof or other appropriate procedural means, afford the appellate tribunal a means of evaluating the claims of error”
How later courts described this case
- explaining that "if appellate review is to be meaningful, a party asserting error in [agency] proceedings must, by making an offer of proof or other appropriate procedural means, afford the appellate tribunal a means of evaluating the claims of error”
- holding that when an issue is given only cursory treatment in the argument portion of an appellant's opening brief, the issue is waived, and the waiver is not correctable by arguing the issue in the reply brief
- stating that "where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal"
- holding that "where a point is given only a cursory statement in the argument portion of a brief, the point will not be considered on appeal”
Written by the judges who cited it.
The opinion
COMPTON, Justice,
with whom MOORE, Justice, joins, concurring.
With the exception of the court's language noted below, I agree with the opinion. However, the language is as wrong as it is irrelevant, and should not be read uncritically.
Contrary to the court’s broad assertion on p. 894 that “[i]n Municipality of Anchorage v. Carter ... we held that the presumption [of compensability] applies to a claim for continuing treatment or care,” the court held only that “in the absence of substantial evidence to the contrary this presumption [of compensability] will satisfy the employee’s burden of proof as to whether continued treatment or care is medically indicated.” Municipality of Anchorage v. Carter, 818 P.2d 661, at 665 (Alaska 1991). To presume that a claim for continuing treatment or care is compensa-ble is quite different from presuming that continued treatment or care is medically indicated. Carter addressed only the latter proposition, not the former. Moreover, no factual issue of whether any treatment or care was medically indicated was raised in this case. Thus this irrelevant discussion may tend to confuse the law of presumptive compensability rather than simply restate it.
What is relevant is that the Board failed to recognize that palliative treatment or care may be compensable in itself. This is a question of law in the first instance, not *896 of fact. For this reason a remand is necessary. The Board must now apply the law as set forth in Carter to the facts.