search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Aleck v. Delvo Plastics, Inc. (3/12/99), 973 P 2d 988
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, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
BEVERLY C. ALECK, )
) Supreme Court No. S-8434
) Superior Court No.
v. ) 3AN-97-2204 CI
DELVO PLASTICS, INC., CNA/ ) O P I N I O N
NORTHERN ADJUSTERS, INC., and )
ALASKA WORKERS' COMPENSATION ) [No. 5093 - March 12, 1999]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Sigurd E. Murphy, Judge pro tem.
Appearances: Joseph A. Kalamarides,
Kalamarides & Associates, Anchorage, for
Appellant. Constance E. Livsey and Dana
Burke, Holmes, Weddle & Barcott, Anchorage,
for Appellees Delvo Plastics, Inc. and
CNA/Northern Adjusters, Inc.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
Twenty years after she suffered a work-related injury,
Beverly Aleck experienced a worsening of her symptoms. Aleck
sought additional benefits from her employer, Delvo Plastics, Inc.
The Alaska Workers' Compensation Board dismissed her claim,
concluding that her increased disability was time barred because it
did not fall within the latent injury exception to the statute of
limitations for bringing new claims. We conclude that there was
insufficient evidence to support the Board's finding that Aleck
failed to exercise reasonable diligence to discover the nature of
the injury. We therefore reverse and remand to the Board for a new
II. FACTS AND PROCEEDINGS
In June 1973, while employed at Delvo Plastics, Inc.
(Delvo), Beverly Aleck punctured her left thumb with a stapler.
Aleck had suffered from abnormalities in her left thumb since
childhood, and a doctor concluded that the stapling accident could
have aggravated her prior medical problems.
Aleck's initial injury did not lead to litigation because
Delvo voluntarily paid her both temporary total disability (TTD)
benefits and partial permanent disability (PPD) benefits. In 1976,
after Aleck's doctor increased her permanent disability rating from
50% of her left thumb to 25% of her entire left upper extremity,
Delvo again voluntarily paid Aleck additional PPD benefits.
Aleck testified that she "lived with"her injury until
1993, when she began to experience numbness in her arm and noticed
breaking blood vessels. Aleck sought medical attention, and in a
November 1995 report, Dr. Gary Archer attributed her increased
symptoms to her 1973 injury. In August 1996 he increased her PPD
rating to 50% of the left upper extremity.
Aleck filed an Application for Adjustment of Claim (AAC)
in November 1995, seeking reimbursement for medical costs
associated with her new symptoms. She later amended her AAC to
seek additional TTD and PPD benefits from Delvo. Delvo petitioned
to dismiss her claim, arguing that it was barred by the statute of
limitations in AS 23.30.105(a).
After a hearing on the petition to dismiss, the Alaska
Workers' Compensation Board, with one member dissenting, ruled that
Aleck's claim was time barred. The Board concluded that Aleck "did
not exercise reasonable diligence to more timely discover the full
extent of her disability"and therefore rejected her argument that
the statute of limitations should be tolled because the increase in
her disability was latent. The superior court affirmed, accepting
the Board's analysis, and Aleck appeals.
A. Standard of Review
Because the superior court acted as an intermediate court
of appeals in this case, we do not defer to its decision. 1
Instead, "we independently review the merits of an administrative
determination."2 We will "substitute our judgment for that of the
Board in reviewing questions of law and statutory interpretation."3
In particular, we review de novo a ruling on the appropriate
statute of limitations. 4
But determining when Aleck learned of the nature of her
disability is a question of fact. 5 We will affirm the Board's
factual findings if substantial evidence exists to support them. 6
Evidence is substantial if "a reasonable mind, viewing the record
as a whole, might accept [it] as adequate to support the Board's
B. The Board Erred in Dismissing Aleck's Claim as Time
Aleck initially applied for an adjustment of her claim
from a PPD rating of 25% of her left upper extremity to a PPD
rating of 50% of her left upper extremity. Delvo defended under AS
23.30.105(a)'s two-year statute of limitations for the filing of
new claims. 8 In response, Aleck argued before the Board that the
increase in her disability, as evidenced by the higher disability
rating, fell within the "latent defect"exception to that statute.
AS 23.30.105(a) sets the time limit for the initial
filing of workers' compensation claims. 9 In general, a claim is
barred unless it is filed within two years after the employee has
knowledge of the nature of the disability and its relation to the
employment. 10 The statute of limitations is tolled "in the case of
latent defects"11 because of the difficulty in predicting the
development of such defects. As Professor Larson discusses, "[t]he
entire problem is the simple one of whether the claimant has had
any reasonable occasion to file a claim sooner than he did."12 If
a claimant had no right to file a claim for a defect whose symptoms
or relation to the workplace were not immediately apparent,
every claimant should presumably be advised to
imagine the most pessimistic and extreme of
all possible explanations of his or her
symptoms, and file claim at once for all of
them. Every pain should be attributed to
cancer; every eye irritation to incipient
cataract; every back or leg pain to
intervertebral disc herniation or
osteomyelitis; every shoulder pain to
separation of the bones. It may be doubted
whether employers, commissions, and courts
would find such an era of compensation
practice any more satisfactory than would the
Through AS 23.30.105(a)'s latent injury exception, the Alaska
Legislature has addressed these concerns by incorporating the
element that the claimant know of the injury's existence.
We have defined an injury as latent "so long as the
claimant does not know, and in the exercise of reasonable diligence
(taking into account his education, intelligence and experience)
would not have come to know, the nature of his disability and its
relation to his employment."14 Similarly, other jurisdictions
define an injury as latent until the substantial character of the
injury is known or until the employee knows or should reasonably be
expected to be aware of the full extent and nature of his injury. 15
As Aleck argues, Alaska case law suggests that her
increased disability may have been latent. In W.R. Grasle Co. v.
Alaska Workmen's Compensation Board, 16 the employee did not
initially file a claim for PPD benefits because doctors informed
him that no permanent injuries would ensue from his on-the-job
accident. 17 Six years later, however, the employee began to
experience increased symptoms, and a doctor diagnosed him as
suffering permanent disabilities. The employee therefore filed a
PPD benefits claim. 18 This court concluded that the claim was
timely under the latent defect provision of AS 23.30.105(a) because
the employee filed it within two years after the time the defect
became discoverable to the employee. 19
The facts that were before the Board, without benefit of
a hearing, do not support its finding that Aleck was aware of the
nature of her injury from the beginning and that her claim was
untimely. Like the employee in Grasle, Aleck did not initially
file a claim based on a PPD rating of 50% of the left upper
extremity because a doctor had informed her that her symptoms only
merited a PPD rating of 25%. Aleck testified that she noticed
increased symptoms, namely numbness and breaking blood vessels in
her arm, in 1993 and sought medical treatment for these symptoms
shortly thereafter in March 1994. She then filed a claim in
November 1995, within two years of her increased disability. Thus,
in light of our holding in Grasle, Aleck's claim may have been
timely under the latent defect provision of the statute.
Yet the Board ruled that the injury was not latent and
that Aleck "knew, or should have known (in the exercise of
reasonable diligence), the nature of her disability."20 Because a
doctor had warned Aleck in the 1970s that her disability could
worsen, the Board concluded that she should have sought more
frequent medical treatment in order to track the progress of her
injury. But Delvo did not present any evidence to contradict
Aleck's factual assertions that her symptoms worsened in 1993 and
that she received medical attention in 1994 nor has it pointed to
any case law suggesting that an employee must periodically visit a
doctor in order to track the progress of an injury even when the
employee has experienced no change in symptoms. In light of the
facts presented by Aleck and the lack of evidence presented by
Delvo, there was insufficient evidence to support the Board's
finding on this issue. 21
The Board was understandably concerned that, given the
many years that had elapsed since Aleck's injury, determining
whether Aleck's increased impairment resulted directly from the
injury or from her pre-existing problems and intervening events
would be difficult. But these difficulties in proof do not justify
denying Aleck a hearing on the merits. Under this court's latent
injury case law Aleck should be granted the chance to offer
evidence at a hearing before the Board.
The evidence that was before the Board did not support
its determination that Aleck failed to exercise reasonable
diligence to discover the nature of her injury. We therefore
REMAND the matter to the Board for further proceedings consistent
with this opinion.
1 See Hodges v. Alaska Constructors, Inc., 957 P.2d 957,
960 (Alaska 1998); Kolkman v. Greens Creek Mining Co., 936 P.2d
150, 153-54 (Alaska 1997).
2 Hodges, 957 P.2d at 960 (citation and internal quotation
3 Leslie Cutting, Inc. v. Bateman, 833 P.2d 691, 693-94
4 See Grober v. State, Dep't of Revenue, 956 P.2d 1230,
1232 n.2 (Alaska 1998); Jenkins v. Daniels, 751 P.2d 19, 21 (Alaska
5 See Leslie Cutting, 833 P.2d at 694 n.8.
6 See Kolkman, 936 P.2d at 154.
7 Id. (internal quotation marks omitted).
8 Aleck actually describes the reason for reopening her
earlier case as "a change in condition of the claimant's injury."
If the need for adjustment is due only to an aggravation of Aleck's
original injury or a change of condition, AS 23.30.130's one-year
statute of limitations, applicable to requests to reopen an award,
could apply. But both the parties and the Board proceeded under AS
23.30.105(a) without considering the potential applicability of AS
23.30.130. We have not had the opportunity to address the precise
question of the relationship between section .105 and section .130
or how a change in condition may be distinguished from a latent
injury. Still, because the parties have not briefed these issues,
we do not consider those issues here. Cf. Hickel v. Halford, 872
P.2d 171, 175 (Alaska 1994); Vest v. First Nat'l Bank, 659 P.2d
1233, 1234 n.2 (Alaska 1983).
9 AS 23.30.105(a) provides:
The right to compensation for disability under
this chapter is barred unless a claim for it
is filed within two years after the employee
has knowledge of the nature of the employee's
disability and its relation to the employment
and after disablement. However, the maximum
time for filing the claim in any event other
than arising out of an occupational disease
shall be four years from the date of injury,
and the right to compensation for death is
barred unless a claim therefor is filed within
one year after the death, except that if
payment of compensation has been made without
an award on account of the injury or death, a
claim may be filed within two years after the
date of the last payment of benefits under AS
23.30.180, 23.30.185, 23.30.190, 23.30.200, or
23.30.215. It is additionally provided that,
in the case of latent defects pertinent to and
causing compensable disability, the injured
employee has full right to claim as shall be
determined by the board, time limitations
10 See AS 23.30.105(a).
12 7 Arthur Larson & Lex K. Larson, Larson's Workers'
Compensation Law § 78.44 (1998).
14 W.R. Grasle Co. v. Alaska Workmen's Compensation Bd., 517
P.2d 999, 1002 (Alaska 1974) (citation omitted).
15 See, e.g., Purolator Courier v. Chancey, 841 S.W.2d 159,
162 (Ark. App. 1992).
16 517 P.2d 999 (Alaska 1974).
17 See id. at 1000, 1003.
18 See id. at 1001.
19 See id. at 1004-05; see also Dafermo v. Municipality of
Anchorage, 941 P.2d 114, 115-19 (Alaska 1997) (finding an injury
latent where doctors were unable to diagnose the nature of
employee's disability or its work-relatedness until many years
after the injury); 7 Larson & Larson, supra note 12, § 78.44
(stating that subsequent increase in disability should be
considered latent injury).
20 We also note that the Board's general practice is to
refrain from granting a petition to dismiss unless the claimant
presents no evidence of the latency of the injury. See Rayson v.
Farmers Loop Mkt., 1991 WL 333812, at *3 (Alaska Workers' Comp. Bd.
Oct. 28, 1991); Wolfer v. Veco, Inc., 1989 WL 236255, at *9 (Alaska
Workers' Comp. Bd. April 14, 1989); Tundra Tours, Inc. v. Alaska
Nat'l Ins. Co., 1985 WL 50599, at *1 (Alaska Workers' Comp. Bd.
Aug. 23, 1985).
21 Aleck argues alternatively that, in order to succeed in
its statute of limitations defense, Delvo had the burden of proving
that it was prejudiced by her delay in filing a workers'
compensation claim. We have implicitly rejected this argument in
a prior case, Morrison-Knudsen Co. v. Vereen, 414 P.2d 536 (Alaska
1966). Explaining the purpose of AS 23.30.105(a)'s statute of
limitations, we relied on a passage from Larson's treatise on
workers' compensation law:
Failure to file a claim for compensation
within the statutory period cannot be excused
by an argument that the employer was not
harmed by the lateness of the filing. Like
any statute of limitation, this one carries a
conclusive presumption that a defendant is
prejudiced by reason of the enhanced
difficulty of preparing a defense.
Id. at 538 n.3 (quoting 2 Larson, Workmen's Compensation § 78.20
(1961)). Because the statute of limitations in AS 23.30.105(a)
presumes that an employer is prejudiced by a failure to file the
claim within the specified time, Delvo did not have to prove
prejudice in order to succeed in its statute of limitations