| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
|
This site is possible because of the following site sponsors. Please support them with your business.
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Griffiths v. Andy's Body & Frame, Inc. (08/17/2007) sp-6146
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| ROBERT L. GRIFFITHS, | ) |
| ) Supreme Court No. S- 12252 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-05-8049 CI |
| ) | |
| ANDYS BODY & FRAME, INC., | ) O P I N I O N |
| and ALASKA NATIONAL | ) |
| INSURANCE COMPANY, | ) No. 6146 August 17, 2007 |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Daniel J. Schally, Judge.
Appearances: Burt Mason, Law Offices of Burt
Mason, Eagle River, for Appellant. Theresa
Hennemann, Holmes Weddle & Barcott, P.C.,
Anchorage, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Bryner, Justices. [Carpeneti,
Justice, not participating.]
BRYNER, Justice.
I. INTRODUCTION
Robert Griffiths worked as an auto body repairman
before developing hand and wrist symptoms that made it difficult
for him to work. He filed an injury report and workers
compensation claim for carpal tunnel syndrome in 2001and had
surgery on both hands. Griffiths applied and was initially found
eligible for reemployment benefits, but his employer later
petitioned to modify this eligibility determination. After a
hearing, the board ruled that Griffiths was no longer eligible
for benefits because his employers medical examiner had found no
permanent partial impairment (PPI). The boards decision and
order nonetheless advised Griffiths that he could seek a PPI
rating of his own and then ask the board to modify its ruling if
the rating established a permanent impairment. Griffiths
obtained a favorable rating and petitioned for modification. But
the board dismissed his petition, ruling that Griffiths had
inexcusably failed to submit an affidavit establishing that, with
due diligence, he could not have obtained his PPI rating in time
for the boards prior hearing. The superior court affirmed the
boards ruling on this point. We now reverse. Because the board
told Griffiths in its earlier decision that he could get his own
expert PPI rating and then ask for modification, Griffiths could
reasonably expect that he had no need to file an affidavit
establishing due diligence if he obtained the new rating and
sought modification within the one-year period normally allowed
for filing a petition for modification.
II. FACTS AND PROCEEDINGS
Robert Griffiths worked most of his adult life as an
auto body repairman; he was employed at Andys Body & Frame, Inc.,
for approximately five years before he filed a workers
compensation claim for hand pain. He was diagnosed with carpal
tunnel syndrome and on September 18, 2001, had surgery on his
left hand to treat it. His physician released him to return to
work on November 26, 2001, with the restriction that he not use
vibratory tools. Griffiths first applied for reemployment
benefits on January 7, 2002. A workers compensation technician
denied his application on January 25, 2002, because his physician
had released him to work.
Griffiths moved to California during the winter of 2001-
2002 because his wife was being treated there for cancer. While
in California Griffiths had surgery on his right hand to relieve
his carpal tunnel complaints. On April 23, 2002, Alaska National
Insurance Company, Andys Bodys insurer,1 requested that Griffiths
be referred for an eligibility evaluation for reemployment
benefits because it had received a medical report showing that
Griffiths could no longer work as an auto body repairman. The
Alaska Workers Compensation Division referred Griffiths for an
eligibility evaluation on May 24, 2002. On August 22, 2002, his
physician in California, Dr. Elise Smith-Hoefer, wrote that any
future jobs Griffiths held should have limits on lifting,
pushing, pulling, grasping, and twisting. She also stated that
he could not return to his former employment and needed
retraining.
On September 16, 2002, Dr. Smith-Hoefer wrote to Andys
Body that Griffiths was medically stable as of August 22, 2002,
but that she could not provide a PPI rating because she was not a
qualified medical evaluator. Also on September 16, 2002, a
reemployment benefits administrator (RBA) with the Alaska Workers
Compensation Division notified Andys Body and Griffiths that
Griffiths was eligible for reemployment benefits. Andys Body had
thirteen days to request a hearing, but it failed to contest the
determination. The RBAs decision became final, and Griffiths
elected to receive reemployment benefits.
Andys Body arranged to have Dr. Clifton Baker evaluate
Griffiths for a PPI rating on November 16, 2002. Dr. Baker
determined that Griffiths probably should not return to his
former job as an auto body repairman, that he had reached medical
stability, and that he had a one percent impairment of the right
hand, which, Dr. Baker concluded, would be equivalent to a zero
percent whole person impairment under the American Medical
Association Guides to the Evaluation of Permanent Impairment,
Fifth Edition. Andys Body then sent a copy of Dr. Bakers report
to Dr. Smith-Hoefer, who responded that she concurred with Dr.
Bakers conclusion, [p]articularly that he should not return to
his previous job.
On February 20, 2003, Andys Body filed a petition for
modification of the reemployment eligibility determination based
on Dr. Bakers report and Dr. Smith-Hoefers concurrence. The
Alaska Workers Compensation Board held a hearing on May 13, 2003;
Griffiths represented himself at the hearing. On June 6, 2003,
the board issued a decision and order in which it found that the
only PPI rating in the record Dr. Bakers showed that Griffiths
had a zero percent whole person impairment under the AMA Guides.
Based on Rydwell v. Anchorage School District,2 the board ruled
that Griffiths was no longer eligible for reemployment benefits
even though all physicians who evaluated him concluded that he
could not return to his regular work. The board nevertheless
qualified this ruling by observing that Griffiths would remain
free to seek a PPI rating from his own treating physician and
could move to modify the boards ruling if that rating differed
from Dr. Bakers:
Nonetheless, we note that the employee has
never been actually rated by his treating
physicians. As the employee points out,
neither of his surgical physicians performs
impairment ratings. There is certainly no
prohibition barring the employee to seek a
referral from an attending physician to a
physician who may provide a rating with a
different result than that of Dr. Baker.
Should the employee receive a rating
indicating he does have a permanent
impairment, he may seek modification under
the provisions of AS 23.30.130 . . . .[3]
Almost nine months later, on March 16, 2004, Griffiths
petitioned to modify the June 6, 2003, decision and order. In
his petition, which he filed pro se, Griffiths stated that he
sought to toll statute of limitations as I need further treatment
& Ive never had a PPI [r]ating. On April 1, 2004, Griffiths
filed a change-of-attending-physician form designating Dr. John
Troxel as his new physician. Dr. Troxel then referred Griffiths
to Dr. Larry Levine for a PPI rating on May 11, 2004.
Dr. Levine concluded that Griffiths had a fifteen
percent whole person impairment based on his testing. In the
meantime, on April 5, 2004, Andys Body had moved to dismiss
Griffithss petition for modification, alleging that it was
untimely. Specifically, Andys Body contended that Griffiths
should have filed the petition within a year of the September 16,
2002 RBA letter finding him eligible for benefits. Andys Body
also argued that Griffithss petition failed to state any ground
for modification.
Soon after Andys Body moved to dismiss his petition for
modification, Griffiths for the first time retained an attorney;
his attorney entered an appearance on May 6, 2004. On June 2,
2004, Griffithss attorney petitioned to amend and supplement
Griffithss March 16 petition for modification. The amended
petition explained:
There are no new medical records available to
the [e]mployee, however a PPI rating was
performed by Dr. Larry Levine in May, 2004,
and has been or will be forwarded to the
carrier. It is anticipated that this record
will not be filed until after the year after
the above referenced D&O, but it is the
foundation of this Petition. As the [d]octor
did find a ratable PPI, the issue of
eligibility for retraining should be
revisited by the Board after the parties have
accumulated the evidence necessary to put on
a [h]earing.
By the time Griffiths filed his petition, Dr. Levine had written
a report summarizing his findings, but no one had received it
yet. Although Griffithss petition relied on the findings of Dr.
Levine, Griffiths was unable to attach a copy of Dr. Levines
report because it was not yet available to him.
Andys Body answered Griffithss amended petition by
reasserting that the petition was not timely because it should
have been filed before September 16, 2003, a year after the RBA
determined that Griffiths was eligible to receive benefits.
Andys Bodys answer did not raise any other procedural objections
to the amended petition. The parties then stipulated to continue
the hearing on Griffithss petition, which had originally been
scheduled for July 8, 2004. Andys Body subsequently filed a
controversion notice in which the only issues it raised were its
continued reliance on Dr. Bakers PPI rating and its not having
received a copy of Dr. Levines report by that time. On August
24, 2004, Griffiths filed a medical summary form with information
about Dr. Levines report. Andys Body requested cross-examination
of Dr. Levine and eventually held a deposition to preserve his
testimony.
The workers compensation board held a hearing on
Griffithss petition to modify on April 5, 2005. Dr. Levine
testified via his deposition. No other witnesses testified, so
the hearing consisted only of argument. Andys Body did not argue
that Griffithss petition was filed too late; instead, it argued
for the first time that Griffiths should have obtained his expert
PPI rating before the hearing in May 2003, when Andys Body
presented Dr. Bakers report that Griffiths had a zero percent
whole person impairment.
The board issued its decision and order on Griffithss
petition for modification on April 28, 2005. The decision
dismissed Griffithss petition as untimely, ruling that it should
have been filed by September 16, 2003 that is, within one year
of the RBAs September 16, 2002, finding that Griffiths was
eligible for reemployment benefits. In effect, this would have
required Griffiths to file the petition a little more than three
months after the board granted Andys Bodys petition to modify the
RBAs determination. The board alternatively decided that even if
the petition itself was timely, it was fatally flawed because
Griffiths failed to submit an affidavit in accordance with
8 Alaska Administrative Code (AAC) 45.150(d) explaining why due
diligence would not have enabled Griffiths to obtain Dr. Levines
PPI rating for the May 2003 hearing, at which the board revoked
Griffithss reemployment benefits in light of Dr. Bakers zero PPI
rating.
Griffiths appealed to the superior court, which
reversed the boards ruling on the timeliness issue but affirmed
on the boards alternate ground for dismissal: that the petition
failed to include an affidavit of due diligence explaining
Griffithss failure to obtain Dr. Levines PPI rating in time for
the May 2003 hearing.
Griffiths appeals.
III. DISCUSSION
A. Standard of Review
On appeal from the decision of a superior court acting
as an intermediate court of appeal in an administrative matter,
we directly review the agencys ruling.4 The scope of review for
an agencys application of its own regulations to the facts is
limited to whether the agencys decision was arbitrary,
unreasonable, or an abuse of discretion.5
B. Denial of the Petition for Modification
Alaska Statute 23.30.130(a) allows the workers
compensation board to modify a previous decision based on changed
conditions or a mistake of a fact. The board may modify the
prior decision on its own initiative or upon application by an
interested party so long as the boards review process begins
within one year of the last payment of compensation or the
rejection of the claim.6
The procedures for initiating a modification proceeding
are set out by regulation; in relevant part, 8 AAC 45.150
provides:
(d) A petition for a rehearing or
modification based on an alleged mistake of
fact by the board must set out specifically
and in detail
(1) the facts upon which the
original award was based;
(2) the facts alleged to be
erroneous, the evidence in support of the
allegations of mistake, and, if a party has
newly discovered evidence, an affidavit from
the party or the partys representative
stating the reason why, with due diligence,
the newly discovered evidence supporting the
allegation could not have been discovered and
produced at the time of the hearing; and
(3) the effect that a finding of
the alleged mistake would have upon the
existing board order or award.[7]
Here, the board determined that Griffithss petition
violated the requirements of 8 AAC 45.150(d)(2) by failing to set
out in specific detail why, with due diligence, Dr. Levines PPI
rating could not have been discovered and produced for the May
2003 hearing at which Andys Body produced Dr. Bakers PPI rating
that showed Griffiths to be ineligible for reemployment benefits.
Griffiths contends that the board abused its discretion
by denying his petition for failing to include a statement of due
diligence as required under 8 AAC 45.150(d).8 He points out that
the boards June 2003 decision and order expressly provided that,
[s]hould the employee receive a rating indicating he does have a
permanent impairment, he may seek modification under AS
23.30.130. As Griffiths understands this statement, it
authorized him to seek modification if he obtained a favorable
PPI rating and initiated a modification proceeding within one
year of the June 2003 decision and order, in accordance with
AS 23.30.130. Because his petition complied with the 2003
decision and orders instructions, Griffiths insists that he acted
with due diligence and had no need to provide any further
explanation.
Griffiths further contends that Dr. Levines testimony
established that Griffiths was not medically stable before seeing
Dr. Levine, so he could not have produced a PPI rating sooner.
Griffiths also points out that in 2003 the board granted Andys
Bodys petition and modified the RBAs original determination
granting benefits yet did not require Andys Body to include a due
diligence statement in its petition or to produce evidence
explaining its failure to produce Dr. Bakers zero PPI rating
sooner. Given these circumstances, Griffiths insists that the
boards reliance on 8 AAC 45.150(d) to disqualify his petition was
clearly an abuse of discretion.
We agree with Griffiths that the board abused its
discretion in dismissing his petition for failing to comply with
8 AAC 45.150(d). When the board issued its 2003 decision,
Griffiths was representing himself. The boards decision and
order advised him that nothing prevented him from obtaining a
referral to a physician for a new PPI rating; the decision and
order then unequivocally declared that [s]hould the employee
receive a rating indicating he does have a permanent impairment,
he may seek modification under the provisions of AS 23.30.130.
We think that a reasonable worker in Griffithss position would
understand the 2003 decision and order as allowing Griffiths to
submit a petition for modification within one year based on a new
PPI rating, without the need to explain why greater diligence
might not have produced an earlier rating. The reasonableness of
this interpretation seems especially clear in light of the boards
apparent failure to enforce the due diligence requirement in 2003
when it granted Andys Bodys petition for modification based on
Dr. Bakers unfavorable rating.
Given the provisions of the 2003 decision and order, we
conclude that the board abused its discretion and violated
Griffithss reasonable procedural expectations by invoking 8 AAC
45.150(d) as a basis for its decision and order denying his
petition for modification. We must therefore vacate the boards
decision and remand with directions to decide, based on the
evidence in the record upon conclusion of Griffithss hearing,
whether Griffiths had a ratable permanent impairment entitling
him to reemployment benefits.9
IV. CONCLUSION
For these reasons, we VACATE the boards decision and
REMAND for a decision addressing the merits of Griffithss
petition, as directed in this opinion.
_______________________________
1 We refer to Andys Body & Frame, Inc. and Alaska
National Insurance Company collectively as Andys Body.
2 Rydwell v. Anchorage Sch. Dist., 864 P.2d 526 (Alaska
1993).
3 AS 23.30.130(a) requires that a petition for
modification be filed within one year of rejection of a claim or
the date of the last payment of compensation.
4 Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).
5 Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960
(Alaska 1998) (citing Rose v. Commercial Fisheries Entry Commn,
647 P.2d 154, 161 (Alaska 1982)).
6 AS 23.30.130(a).
7 8 AAC 45.150(d) (2004).
8 Andys Body has not challenged the superior courts
ruling on the timeliness issue; accordingly there is no need for
us to address that point. Ray v. Ray, 115 P.3d 573, 578 (Alaska
2005).
9 Griffiths separately argues on appeal that the board
erred in its 2003 decision by relying on Dr. Bakers PPI rating
because Dr. Baker incorrectly applied the AMA Guides in
calculating the rating. The boards 2004 decision does not
address this issue, and our decision remanding the case to the
board makes it unnecessary to decide the issue here. On remand,
however, the board may allow further argument on the point if it
believes that the additional argument would be helpful.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
