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Huston v. Coho Electric (9/27/96), 923 P 2d 818
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska, 99501, telephone (907) 264-0607, fax (907) 264-
THE SUPREME COURT OF THE STATE OF ALASKA
DANNY HUSTON, )
) Supreme Court No. S-6534
) Superior Court No.
v. ) 3AN-93-3097 CI
COHO ELECTRIC, and CRAWFORD ) O P I N I O N
& COMPANY/ARGONAUT INSURANCE )
COMPANY, and ALASKA INSURANCE ) [No. 4410 - September 27, 1996]
GUARANTY ASSOCIATION, )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Rene Gonzales, Judge.
Appearances: Michael J. Patterson, Anchorage,
for Appellant. Peter J. Crosby, Crosby &
Sisson, P.C., Anchorage, for Appellees Coho
Electric and the Alaska Insurance Guaranty
Association. Deidre D. Ford, DeLisio, Moran,
Geraghty & Zobel, Anchorage, for Appellees
Coho Electric and Argonaut Insurance Company.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Carpeneti,
Justice pro tem.
We must here consider whether AS 23.30.110(c) time bars
Danny Huston's claim for workers' compensation benefits. The
Alaska Workers' Compensation Board dismissed Huston's claims as
untimely. The superior court affirmed when Huston appealed the
Board's decision. We reverse and remand.
I. FACTS AND PROCEEDINGS
Danny Huston injured his lower back while employed by
Coho Electric (Coho) in 1984. Argonaut Insurance Company
(Argonaut) then insured Coho. Coho/Argonaut accepted the claim for
the 1984 injury and paid Huston temporary total disability
benefits. He was released to return to work without restriction.
Huston suffered a second back injury while employed by
Coho in 1985. Rockwood Insurance Corporation then insured Coho.
(The Alaska Insurance Guaranty Association succeeded Rockwood,
which has been liquidated.) Coho/Rockwood paid benefits for
Huston's 1985 injury, and Huston returned to work for Coho.
On May 28, 1987, Huston filed an application for
adjustment of claim ("first application"), requesting permanent
partial disability (PPD), temporary total disability (TTD),
vocational rehabilitation and medical benefits. The application
was based upon both the 1984 and 1985 injuries. Coho and its
insurers answered the application, denying all claims, on June 24,
1987. On November 14, 1988, Huston served and filed an affidavit
of readiness for hearing. The affidavit asserted that Huston was
prepared for a hearing "on the issues set forth"in the first
In a subsequent prehearing conference, Huston indicated
that he only wished to pursue a hearing regarding the payment of
certain outstanding medical costs. However, the Board did not
conduct a hearing; following a March 6, 1989, prehearing
conference, the Board reported that "issues before the Board are
resolved. Affidavit of Readiness will be rendered inoperative."
The record reveals no objections from any party regarding that
On August 21, 1991, Huston filed another application for
adjustment of claim ("second application"), requesting TTD,
vocational rehabilitation and medical benefits, plus attorney's
fees. That application specified the 1984 injury. Coho and
Argonaut answered the application, denying all claims, on September
11, 1991. On February 10, 1992, Huston filed an affidavit of
readiness for hearing asserting he was prepared for a hearing to
resolve the issues raised in the August 21, 1991, application for
adjustment. Huston filed this affidavit of readiness about five
months after Coho denied his August 21, 1991, application, and
nearly three years after the Board in March 1989 ordered that his
1988 affidavit of readiness "will be rendered inoperative."
A hearing on Huston's August 21, 1991, application was
held June 19, 1992. At that hearing, Huston requested and was
granted a continuance so he could obtain new counsel following
withdrawal of his previous attorney. Huston was subsequently
examined by a physician who gave him a nine percent disability
rating. Through newly-acquired counsel, Huston filed on July 29
and 30, 1992, affidavits of readiness for hearing for the 1984
injury and the 1985 injury, respectively. Those affidavits
specified that Huston was prepared for a hearing on the issues set
forth in the first application dated May 28, 1987; the affidavits
made no reference to the second application, dated August 21, 1991.
At a prehearing conference, Huston stated that the issues to be
heard were Huston's claims for PPD, reimbursement for
rehabilitation, medical benefits, and attorney's fees. These were
among the benefits Huston had requested in the first application.
Coho and Argonaut asked the Board to dismiss Huston's
claim as time-barred under AS 23.30.110(c). The Board held that
statute barred all of Huston's claims. It reasoned that the
statute of limitations began running again on March 6, 1989, when
Huston agreed at the prehearing conference that the issues before
the Board at that time had been resolved and when the Board stated
the 1988 affidavit of readiness for hearing "will be rendered
inoperative." It noted it had held on numerous occasions that when
an affidavit of readiness for hearing is rendered inoperative, the
limitations statute in subsection 110(c) starts to run again. The
Board reasoned that even tolling the two-year time limit for the
period between November 14, 1988 (when Huston filed the initial
affidavit of readiness for hearing) and March 6, 1989 (when the
Board conducted the prehearing conference), Huston's 1992
affidavits were untimely. Thus the Board concluded that the 1987
claim was time-barred.
The superior court affirmed the Board's ruling on appeal.
This case turns on statutory interpretation.
Accordingly, we review the decision of the Board using our
independent judgment. Hood v. State, Workmen's Compensation Bd.,
574 P.2d 811, 813 (Alaska 1978). Where the superior court has
acted as an intermediate court of appeal, we give its determination
no deference. Smith v. Sampson, 816 P.2d 902, 904 (Alaska 1991).
Subsection 110(c) "requires the employee, once a claim
has been filed and controverted by the employer, to prosecute the
employee's claim in a timely manner."(EN1) Jonathan v. Doyon
Drilling, Inc., 890 P.2d 1121, 1124 (Alaska 1995). See 2B Arthur
Larson, The Law of Workmens' Compensation sec. 78.84, at 15-
426.32(53) (1995) (describing similar statutes by which "a claim
may be dismissed for failure to prosecute it or set it down for
hearing in a specified or reasonable time").
Subsection 110(c) was the basis for the Board's dismissal
of Huston's claim for benefits requested in his May 28, 1987,
application. It held that subsection 110(c) barred Huston's 1987
claims because it concluded that the statute of limitations began
running again on March 6, 1989, when Huston agreed at the
prehearing conference that the issues before the Board at that time
had been resolved and when the Board ordered that his initial
affidavit of readiness "will be rendered inoperative."
Huston argues that the filing of the November 14, 1988,
affidavit of readiness should have permanently tolled subsection
110(c). We agree that the plain language of subsection 110(c)
demands only that the employee request a hearing within two years
of the date of controversion; the Board may require no more from
the employee. Tipton v. Arco Alaska, Inc, __ P.2d __, Op. No. 4398
(Alaska, September 6, 1996). The Board may not unilaterally re-
start subsection 110(c)'s time limit after the employee has timely
requested a hearing. (EN2)
We REVERSE and REMAND to the superior court with
instructions that it remand to the Board for reinstatement of
1. When Huston suffered his injuries, subsection 110(c) provided
in relevant part:
If a claim is controverted by the employer and
the employee does not request a hearing for a
period of two years following the date of
controversion, the claim is denied.
Former AS 23.30.110(c) amended by sec. 20, ch. 79, SLA 1988. The
1988 amendment applies only to injuries suffered on or after July
1, 1988. Ch. 79, sec. 48, SLA 1988.
2. Our resolution of this issue makes consideration of Huston's
remaining arguments unnecessary.