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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Irby v. Fairbanks Gold Mining, Inc. (03/20/2009) sp-6346
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
| EDWARD P. IRBY, Deceased, and | ) |
| CARTRIE IRBY, EDWARD P. IRBY II, | ) Supreme Court No. S-12680 |
| and HANNAH C. IRBY, Beneficiaries, | ) |
| ) Superior Court No. 4FA-05- 02288 CI | |
| Appellants, | ) |
| ) O P I N I O N | |
| v. | ) |
| ) No. 6346 March 20, 2009 | |
| FAIRBANKS GOLD MINING, INC., | ) |
| and OLD REPUBLIC INSURANCE | ) |
| CO., | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Randy M. Olsen and Niesje J.
Steinkruger, Judges.
Appearances: Chancy Croft, Chancy Croft Law
Office, Anchorage, for Appellants. Constance
Cates Ringstad, McConahy, Zimmerman &
Wallace, Fairbanks, for Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Winfree,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
This appeal concerns the timeliness of a March 2004
workers compensation claim. Edward Irby disappeared in an
apparent industrial accident on April 13, 1997. Irbys wife
promptly petitioned the Fairbanks district court for a
presumptive death certificate, but in October 1997 the district
court jury determined there was insufficient evidence to presume
Irby dead. In 2003 Irbys son filed a second presumptive death
petition; the jury in this second proceeding decided in October
2003 that Irby was presumed dead in the industrial accident.
Irbys widow filed a workers compensation claim for herself and
her children in March 2004. The Alaska Workers Compensation Board
rejected Irbys employers contention that the claim was untimely
and awarded death benefits. The employer appealed to the
superior court, which reversed. It held that the one-year
statute of limitations, AS 23.30.105(a), began running on April
13, 2002, when Irby was presumed dead per AS 13.06.035(5), and
that the March 2004 claim was therefore untimely. Applying
tolling principles and because Irbys family acted reasonably in
pursuing a presumptive death certificate before filing a claim
for workers compensation benefits, we hold that the claim was
timely and remand for reinstatement of the boards decision and
order.
II. FACTS AND PROCEEDINGS
Edward Irby worked as a truck driver at the Fort Knox
Mine, operated by Fairbanks Gold Mining, Inc. The event
resulting in this workers compensation claim happened about two
days after Irby began training to operate a bulldozer. On April
13, 1997, the bulldozer Irby was operating traveled backward down
a steep slope into a tailing pond and broke through the ice. The
bulldozer was completely submerged. No one saw the accident, but
Irbys shift supervisor, observing that Irby was not at his
assigned location, discovered the accident site shortly after
Irby was last seen.
Fairbanks Gold summoned emergency personnel, including
the Alaska State Troopers. Divers from the troopers went into
the pond within two hours of the accident, hoping to find Irby;
they were unsuccessful. After the troopers ended their recovery
efforts, Fairbanks Gold unsuccessfully continued to search for
Irbys body throughout the summer. At the time of his
disappearance, Irby had a wife and two minor children. Fairbanks
Gold filed a notice of the accident with the Alaska Workers
Compensation Board in April 1997; a month later the employer
filed a notice of controversion, stating that benefits were
denied pending further investigation.
In late May 1997 Irbys wife, Cartrie Irby, invoking AS
09.55.020-.060, filed a presumptive death petition in state
district court. After a hearing at which eight witnesses
testified, a jury decided in October 1997 that there was not
enough evidence to presume that Irby had died. In December 1997
Fairbanks Gold filed a second controversion with the board; this
controversion relied on the jury verdict. The following year
Cartrie Irby contacted the workers compensation insurance
adjuster and the board about benefits. She received conflicting
information from the board: one staff member told her that it
would be premature to file for benefits in light of the jury
verdict, but another suggested that the time for filing had
already expired.
In July 2003 Irbys son, Edward II, who was by then an
adult, filed a second presumptive death petition. The jury in
that case decided in October 2003 that Irby was presumed to have
died on April 13, 1997 in the Fort Knox Mine accident. The
Bureau of Vital Statistics issued a presumptive death certificate
on November 7, 2003. Cartrie filed a workers compensation claim
for death benefits in March 2004 on behalf of herself and her
children. Fairbanks Gold filed an answer and controversion,
incorporating its previous controversions and asserting that the
statute of limitations and laches barred the claim.
An attorney entered an appearance for the Irbys on
March 21, 2005 and soon asked the board to set a hearing on the
claim. Fairbanks Gold petitioned the board to dismiss the claim
based on the statute of limitations and laches. It alleged in
later pleadings that Irby was still alive and that his dependents
consequently should receive no benefits. The board held a
hearing over three days on the petitions and claim. Applying a
type of discovery rule to decide when the statute of limitations
began to run, the board decided that Cartrie had timely filed the
March 2004 workers compensation claim and awarded her and the
children benefits as well as attorneys fees and costs. The board
declined to award the Irbys a penalty for Fairbanks Golds failure
to pay benefits after the second jury verdict, finding that
Fairbanks Gold had not filed its 2004 controversion in bad faith.
Fairbanks Gold appealed to the superior court, and the
Irbys cross-appealed the denial of a penalty. Fairbanks Gold
asked the court to stay payment of past benefits and requested
expedited consideration of the issue. The superior court appeal
was initially assigned to Superior Court Judge Pro Tempore
Raymond M. Funk, who set an expedited briefing schedule and
hearing. Fairbanks Gold peremptorily challenged Judge Funk, and
the case was reassigned to Superior Court Judge Randy M. Olsen.
The Irbys filed their opposition to the stay motion on September
22, 2005. On Friday, September 23, the court faxed the Irbys
attorney notice that a hearing on the motion for stay would be
held before Judge Olsen on Monday, September 26 at 10:00 a.m.; it
also mailed the Irbys attorney the notice of reassignment to
Judge Olsen. The Irbys attorney attended and participated in the
hearing on September 26.
On September 29 the Irbys filed a peremptory challenge
of Judge Olsen. Fairbanks Gold objected to the challenge because
of the Irbys participation at the September 26 hearing. The
Irbys responded that they had not received the notice of
reassignment to Judge Olsen until after the hearing. Presiding
Superior Court Judge Niesje J. Steinkruger denied the Irbys
peremptory challenge, ruling that they had waived it by
participating in the hearing.
In April 2007 Judge Olsen reversed the boards decision
and dismissed the Irbys cross-appeal. Applying its independent
judgment to the statute of limitations question and relying on
Carman v. Prudential Insurance Co.,1 the superior court decided
that the statute of limitations for filing the workers
compensation claim, AS 23.30.105(a), began to run on April 13,
2002, five years after Irby disappeared. At that point,
according to the court, Irby could be presumed dead under the
probate statutes;2 the court reasoned that a party could rely on
the five-year presumptive death period to establish death without
obtaining a certificate. Because the one-year statute of
limitations began to run on April 13, 2002, the superior court
concluded that the Irbys March 2004 claim was untimely, and that
the board should not have awarded benefits.
The Irbys appeal the courts reversal of the boards
award of benefits and the boards refusal to impose a penalty on
Fairbanks Gold. They also appeal the courts denial of their
peremptory challenge of Judge Olsen.
III. DISCUSSION
A. Standard of Review
In a workers compensation appeal from the superior
court we directly review the board decision.3 Application of the
relevant statute of limitations is a legal question involving no
agency expertise;4 accordingly, we substitute our judgment,
adopting the rule of law that is most persuasive in light of
precedent, reason, and policy.5 The boards factual findings are
reviewed to see if they are supported by substantial evidence.6
Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. 7
Interpretation and application of the right to disqualify a judge
under Alaska Civil Rule 42(c) is a question of law that we
consider de novo.8
B. The Irbys Claim Was Timely.
Per AS 23.30.105(a), the statute of limitations for
filing a claim for death benefits in a workers compensation case
is one year after the death.9 The workers compensation statute
and its implementing regulations do not specify the evidence a
deceased workers beneficiaries can use to prove death.10 In
addition, no regulation discusses proof of death in a case like
this one, where no body has been recovered and the employer
continues to assert that the employee is not in fact dead.
Fairbanks Gold argues that the one-year statute of
limitations on the Irbys death benefits claim ran out on either
April 13, 1998 one year after the accident or April 13, 2003
one year after expiration of the five-year presumptive death
period specified in AS 13.06.035(5). Fairbanks Gold asserts that
the board could determine that Irby was dead independently of a
jury verdict. The Irbys maintain that their claim was timely
because they filed it within one year of the date the second jury
found that Irby was presumed to have died in the industrial
accident.
We hold that the doctrine of equitable tolling applies
and that the Irbys claim was timely. Use of equitable tolling
should come as no surprise in the context of an administrative
proceeding.11 We can affirm a judgment on any appropriate basis,
including grounds not relied on or raised in the lower tribunal.12
The principle that we can affirm on alternative grounds applies
only to issues of law that find support in settled facts and does
not extend to new theories that would normally be resolved by
discretionary powers traditionally reserved for trial courts
powers relying on case-specific consideration of disputed or
disputable issues of fact.13
After briefing in this court was completed, the Irbys
filed a citation of supplemental authority per Alaska Rule of
Appellate Procedure 212(c)(12) to further support equitable
arguments they presented to both the board and the superior
court. The citations raised equitable tolling as an alternative
basis for affirming the boards decision. Although neither the
board nor the superior court considered equitable tolling in
evaluating the Irbys claim, the elements of equitable tolling
parallel the elements of issues directly raised by the parties
and considered below. The Irbys argued estoppel in the
alternative before the board and the superior court; Fairbanks
Gold raised the issue of prejudice in its defense of laches and
in responding to the Irbys equitable arguments. The employer had
an opportunity to dispute the Irbys diligence in bringing their
claim and the reasonableness of the Irbys procedural choices.
Additionally, the employer litigated the issue of prejudice. The
board made factual findings that serve as the foundation of a
legal ruling on equitable tolling. The board found that
Fairbanks Gold had ample, timely opportunity to investigate and
defend against any possible claims by the [Irbys]. Given the
certainty that the doctrine of equitable tolling is satisfied and
the absence of a genuine factual dispute material to its
application, we rely on equitable tolling to affirm the board
decision.
We have previously stated that even though the defense
of statute of limitations is a legitimate defense,14 we look on it
with disfavor and will strain neither the law nor the facts in
its aid.15 We have identified several policies served by
limitations periods: providing defendants with notice of the
nature of adverse claims and barring plaintiffs who have slept on
their rights,16 as well as protecting against prejudice from stale
claims.17 Here, Fairbanks Gold had notice of the claim: it
indicated in a 1997 letter to its workers compensation carrier
that the first jury verdict stayed Cartries claim for benefits
and that the claim would go into excess at some point. In 1998
its workers compensation carrier instructed Fairbanks Gold to
leave a reserve on that claim. The evidence also suggests that
the Irbys did not sleep on their rights. Cartrie promptly filed
the first presumptive death petition only seven weeks after the
accident. In 1998 Cartrie contacted Fairbanks Gold, the workers
compensation adjuster, and board staff seeking advice about
pursuing a claim for benefits and information about reports or
other evidence related to the accident. In 2000 she again
contacted Fairbanks Gold to see if it had any new information
about the accident. The record also shows that the Irbys
contacted the Fairbanks court in 1999 and again in 2002 about
filing another presumptive death petition. Finally, nothing
indicates that any evidence became more stale between the running
of the five-year presumptive death period and the time Edward II
filed the second presumptive death proceeding.
Under the doctrine of equitable tolling, when a party
has more than one legal remedy available, the statute of
limitations is tolled while the party pursues one of the possible
remedies.18 In Gudenau v. Sweeney Insurance, Inc., we adopted a
three-part test for equitable tolling: (1) the alternative remedy
must give notice to the defendant; (2) the defendant must not be
prejudiced; and (3) the plaintiff must have acted reasonably and
in good faith.19 The initial remedy must be pursued in a judicial
or quasi-judicial forum.20 A party is generally entitled to the
full statutory period after the circumstances which justify
equitable tolling abate.21
Because the statute of limitations on workers
compensation death benefits runs from the time of death22 and
because Fairbanks Gold insisted that Irby was still alive, the
Irby beneficiaries needed to establish a date of death or
presumed death.23 The alternative legal remedies we discuss are
different ways to establish the fact of Irbys death. Here,
Cartrie had more than one way to pursue a finding of Irbys death.
To obtain a presumptive death certificate from the state, she
could either file a presumptive death petition in district court24
or, after five years had elapsed, begin a superior court
proceeding, presumably in probate.25 She chose the first
alternative. It is less clear whether, without first obtaining a
presumptive death certificate, she could have filed a workers
compensation claim with the board and asked the board, rather
than a court, to determine that Irby had died. Here, the board
did not determine that it had exclusive jurisdiction to determine
the fact of Irbys death.26 It permitted the Irbys to introduce
the presumptive death certificate into evidence and gave
Fairbanks Gold the opportunity to present evidence that Irby was
not in fact dead. Even if the board had jurisdiction to find
that Irby was in fact dead (in addition to finding that his death
was the result of an industrial accident), Cartrie had other
avenues available to establish that he had died, namely filing a
presumptive death petition or a probate proceeding.
We first consider the reasonableness of the Irbys
actions. Relying on AS 09.55.020-.060, Cartrie initially chose
to file a presumptive death petition in district court shortly
after Irbys disappearance. Her actions were reasonable: a
district court presumptive death hearing is the only way to
obtain a certificate of presumptive death without waiting five
years,27 and, given the circumstances of Irbys disappearance, it
was not unreasonable for her to think that a jury would find that
he had died at the mine.28
After the first jury decided that the evidence was
insufficient to presume that Irby was dead, Fairbanks Gold filed
its second controversion with the board, specifically relying on
the jury verdict. Because the 1997 verdict did not establish the
presumptive death, and because Fairbanks Gold took the position
that as a result of that verdict no workers compensation benefits
were payable, Cartrie cannot be faulted for failing to file a
claim for benefits after the jury returned its 1997 verdict. In
effect, given the jurys verdict in 1997, the time in which to
file a claim was not yet running.29
In addition, when Cartrie contacted the board in 1998,
she received conflicting advice. One staff member suggested that
the statute of limitations had already run, while a second
indicated that filing for death benefits could be premature. The
insurance adjuster offered her no information about pursuing a
claim, even though she had no attorney at the time. Based on
Fairbanks Golds controversion and the conflicting advice she
received from the board, it was reasonable for Cartrie not to
file a workers compensation claim immediately.
It was also reasonable for the Irbys to wait for the
five-year presumptive death period to pass before taking further
action. The parties agree that there was no time limit by which
the Irbys needed to refile a presumptive death petition.30 Here,
Edward II filed the second presumptive death petition about six
years after Irbys disappearance. The one-year delay in filing
beyond the five-year presumptive death period was not per se
unreasonable. As we noted earlier, the Irbys inquired of
Fairbanks Gold and the court during the time between the first
jury verdict and the filing of the second presumptive death
petition.
Under the doctrine of equitable tolling, the first
proceeding must give notice to the defendant.31 Fairbanks Gold
had ample notice of the circumstances of the accident, the two
presumptive death petitions, and the workers compensation claim.
Fairbanks Gold conducted its own investigation of the accident in
1997 and had copies of the investigation of the Alaska State
Troopers and the reports of the United States Department of Labor
Mine Safety & Health Administration and the State of Alaska
Occupational Injury Prevention Program. An attorney for
Fairbanks Gold attended both presumptive death hearings. Several
Fairbanks Gold employees testified at the first presumptive death
hearing, and a former employee testified at the second
presumptive death hearing. As we noted already, Fairbanks Gold
interpreted the first verdict as deferring the possibility of a
claim. Cartries continuing inquiries should also have alerted
Fairbanks Gold that the family was not forgoing a claim for
benefits. The board found that Fairbanks Gold had ample, timely
opportunity to investigate and defend against possible claims by
the beneficiaries. This finding is fully supported by the
record.
Finally, equitable tolling requires that the defendant
not be prejudiced.32 Fairbanks Gold asserts that because between
1997 and 2004 two important witnesses died and another moved out
of state, it was prejudiced by the Irbys delay in filing for
benefits. It does not identify the witnesses. Before the board,
Fairbanks Gold argued that it was prejudiced because of the
deaths of Steve Bonham, who testified at the first presumptive
death hearing, and Roger Lucas, the Fairbanks Gold employee who
investigated the accident and wrote the incident report. But the
record reflects that Lucas died in 1999, before the five-year
presumptive death period expired.33 Two other Fairbanks Gold
employees testified at the first presumptive death hearing, and
both participated in the later proceedings. One testified in
person at the board hearing, and the other testified by telephone
at the second presumptive death hearing. Fairbanks Gold alleges
additional prejudice because of changes in its ownership but does
not show how an additional eleven-month delay (from April 13,
2003 to March 1, 2004) prejudiced it.
The boards finding that Fairbanks Gold had ample
opportunity to investigate and defend the claim indicates that
Fairbanks Gold was not prejudiced by any delay in pursuing a
presumptive death certificate before filing a claim for death
benefits.
Carman v. Prudential Insurance Co. does not foreclose
the equitable tolling principles we apply here.34 There is no
indication there was any dispute in Carman about whether the
missing person was actually still alive and had engineered his
disappearance. The statutory presumption of death is generally
considered a rebuttable presumption,35 and Fairbanks Gold insisted
that Irby was still alive. Moreover, there was no attempt in
Carman to obtain a prompt determination of death,36 unlike the
situation here. Nor was there any indication of relatively
diligent inquiries by Ruth Carman that were either unsuccessful
or discouraged.37 In any event, she did not file suit until
nearly fifteen years after her husband disappeared while piloting
an airplane.38
We conclude that there are no genuine factual disputes
as to any of the elements of equitable tolling and that the
parties had a fair opportunity to dispute parallel issues before
the board. The Irbys satisfy the elements of equitable tolling:
the Irbys pursuit of a presumptive death certificate and related
inquiries gave adequate notice of the claim to Fairbanks Gold;
Fairbanks Gold was not prejudiced; and the Irbys acted reasonably
and in good faith in pursuing a presumptive death certificate
before filing their claim for death benefits, particularly in
light of Fairbanks Golds December 1997 controversion. Their
claim was filed within a reasonable period of time for equitable
tolling purposes because it was filed within one year of the jury
verdict which found that Irby was presumed to have died in the
April 1997 accident.
C. The Superior Court Properly Denied the Peremptory
Challenge of Judge Olsen.
The Irbys also appeal Presiding Superior Court Judge
Steinkrugers denial of their motion to peremptorily challenge
Judge Olsen. They assert that the hearing on the motion for stay
was not a hearing on the merits that waived their rights under
Alaska Civil Rule 42(c) because no factual issues were presented
and decided by Judge Olsen.
Alaska Civil Rule 42(c)(4) provides:
A party waives the right to change as a
matter of right a judge who has been
permanently assigned to the case by knowingly
participating before that judge in:
(i) Any judicial proceeding which
concerns the merits of the action and
involves the consideration of evidence or of
affidavits . . . .
We hold that the Irbys participation in the September
26 hearing on the stay motion waived their right to peremptorily
challenge Judge Olsen. The Irbys argued the merits of the case
extensively in their opposition and filed many merits-related
exhibits with their opposition. Presumably the superior court
considered the exhibits in deciding the motion. A motion for
stay in a workers compensation case is similar to a motion for a
preliminary injunction,39 and it necessarily involves some
consideration of the merits of a case.
Participation in a hearing must also be knowing for
waiver to occur.40 Here, even though counsel did not actually
receive notice of the permanent assignment until after the
hearing, he is deemed to have been on notice of the assignment.41
The case was reassigned to Judge Olsen before the contested
hearing. The Irbys attorney had every reason to know in advance
that issues of substance would be considered at the hearing; he
had filed a lengthy and detailed opposition to the stay motion
and knew that the hearing would not involve routine or
uncontested matters. He traveled from Anchorage to Fairbanks to
participate in the hearing. Under these circumstances, counsel
potentially interested in challenging the judge who will be
presiding over a scheduled hearing has ample reason to determine
by inquiring of court staff or reviewing the court file before
the hearing whether a permanent assignment has already been made;
if he does not, he is presumed to have known of the assignment.
Because the Irbys knowingly participated in a hearing
before Judge Olsen that required some consideration of the merits
of the action and the hearing involved the consideration of
evidence, Judge Steinkruger did not err in denying the Irbys
peremptory challenge of Judge Olsen.
D. The Board Permissibly Denied the Irbys Penalty Request.
The Irbys also challenge the boards denial of their
request for a penalty against Fairbanks Gold for failing to pay
benefits to them beginning in October 2003, when the second jury
found that Irby died in the mining accident. The Irbys sought a
penalty under AS 23.30.155(e), which requires that compensation
be paid within seven days unless a notice of controversion is
filed. A controversion must be made in good faith to protect the
employer from a penalty.42 Here, the board found that the case
was one of first impression, either because of the issue of
whether a controversion filed after the issuance of a presumptive
death certificate was made in good faith, or because of the
unsettled legal questions about the interaction of a presumptive
death certificate and the statute of limitations in a workers
compensation case. Partly as a result of the novel legal
questions involved, the board stated that we cannot find the
employer did not act in good faith in filing its controversion.43
It is not clear from the boards decision whether its
determination regarding the controversion was a fact-based or a
legal decision. The Irbys contend that Fairbanks Gold had not
one shred of evidence that Edward Irby was alive after the second
presumptive death hearing, To the extent the board based its
finding of good faith on rumors of Irbys survival, rumors or
speculation alone cannot serve as a basis for a good faith
controversion.44 But the 2004 controversion was based primarily
on legal or equitable defenses laches and the statute of
limitations rather than factual issues. Either defense could
serve as the good faith basis for a controversion because a good-
faith controversion can be based on a legal defense.45 Undisputed
evidence showed that the Irbys filed their workers compensation
claim more than a year after the accident. If the Irbys had
presented no evidence or argument justifying their filing of the
claim at the time they did, the board might have accepted
Fairbanks Golds legal argument that the statute of limitations
had run or its equitable argument that it had been prejudiced by
the length of time between the accident and the claim filing.
Either defense could have resulted in denial of the Irbys claim.
Fairbanks Golds reliance on the timeliness defenses was
unsuccessful, but was not legally implausible. Because Fairbanks
Gold raised colorable legal arguments that were based in part on
undisputed facts, we affirm the boards decision that Fairbanks
Golds 2004 controversion was not made in bad faith.
V. CONCLUSION
The superior court judgment, which reversed the
Decision and Order of the board, is REVERSED. We REMAND with
directions to reinstate the September 12, 2005 Final Decision and
Order of the board. We AFFIRM the board decision not to impose a
penalty on Fairbanks Gold. We AFFIRM Judge Steinkrugers denial
of the Irbys peremptory challenge of Judge Olsen.
_______________________________
1 Carman v. Prudential Ins. Co., 748 P.2d 743 (Alaska
1988) (holding that statute of limitations period for life
insurance claim for death of disappeared person began at
expiration of five-year presumptive death period).
2 The court cited AS 13.06.035(5).
3 Dougan v. Aurora Elec., Inc., 50 P.3d 789, 793 (Alaska
2002).
4 Bailey v. Tex. Instruments, Inc., 111 P.3d 321, 323
(Alaska 2005).
5 Circle De Lumber Co. v. Humphrey, 130 P.3d 941, 946
(Alaska 2006).
6 DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).
7 Id. (quoting Grove v. Alaska Constr. & Erectors, 948
P.2d 454, 456 (Alaska 1997)).
8 Cook v. Rowland, 49 P.3d 262, 264 (Alaska 2002) (per
curiam).
9 AS 23.30.105(a) states:
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
employees 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
23.30.041, 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 notwithstanding.
10 The board wrote to the Alaska Bureau of Vital
Statistics in May 1997, shortly after Fairbanks Gold filed the
notice of injury, seeking a copy of a death certificate for Irby.
Unlike the board, the Social Security Administration has
regulations governing both proof of death and presumptive death.
20 C.F.R. 404.720.721 (2007).
11 See Abbott v. State, 979 P.2d 994 (Alaska 1999)
(applying federal equitable tolling doctrine to Jones Act claim
following workers compensation claim); see also Dayhoff v. Temsco
Helicopters, Inc., 772 P.2d 1085, 1086-87 (Alaska 1989) (holding
that Department of Labor proceedings are alternative proceedings
for equitable tolling purposes).
12 Maness v. Daily, 184 P.3d 1, 7 (Alaska 2008) (citing
Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961)); see also Bouse
v. Firemans Fund Ins. Co., 932 P.2d 222, 236 (Alaska 1997)
(noting that appellate court can affirm on different basis in
administrative appeal).
13 Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006).
14 Lee Houston & Assocs., Ltd. v. Racine, 806 P.2d 848,
854 (Alaska 1991) (citing Jenkins v. Daniels, 751 P.2d 19, 22
(Alaska 1988)).
15 Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 886
(Alaska 2004) (quoting Fred Meyer v. Adams, 963 P.2d 1025, 1027
n.6 (Alaska 1998)).
16 Id. at 886.
17 Long v. Holland Am. Line Westours, Inc., 26 P.3d 430,
434 (Alaska 2001) (citing West v. Buchanan, 981 P.2d 1065, 1068
(Alaska 1999)).
18 Gudenau v. Sweeney Ins., Inc., 736 P.2d 763, 768
(Alaska 1987).
19 Gudenau v. Sweeney Ins., Inc., 736 P.2d 763, 768
(Alaska 1987).
20 Dayhoff v. Temsco Helicopters, Inc., 772 P.2d 1085,
1087 (Alaska 1989).
21 Id. at1088 n.6 (citing Gudenau, 736 P.2d at 769 n.8).
22 AS 23.30.105(a).
23 A finding of presumptive death permits a missing
persons estate to be probated under laws applicable to decedents
estates. AS 09.55.050.
24 AS 09.55.020.060; Alaska Dist. Ct. R. Civ. P. 32; 7
Alaska Administrative Code (AAC) 05.865.870 (2008).
25 AS 13.06.035(5); Alaska Dist. Ct. R. Civ. P. 32(e);
Alaska R. Prob. P. 6; 7 AAC 05.440, .865.870 (2008).
26 We do not decide whether the board has jurisdiction to
determine that a missing worker is dead.
27 Alaska Dist. Ct. R. Civ. P. 32(e).
28 Fairbanks Gold does not allege any bad faith by Edward
II or Cartrie, and there is no evidence to support such an
allegation.
29 See 22A Am. Jur. 2d Death 423 (2003) (stating that
life is conclusively presumed to continue until contrary is shown
by sufficient proof).
30 Cf. AS 09.10.100 (providing general statute of
limitations); AS 13.16.040(a)(1)-(2) (extending permissible time
for filing probates for absentees).
31 Gudenau v. Sweeney Ins., Inc., 736 P.2d 763, 768
(Alaska 1987).
32 Id. at 768.
33 Fairbanks Gold did not give a date of death for Bonham.
34 Carman v. Prudential Ins. Co., 748 P.2d 743 (Alaska
1988).
35 22A Am. Jur. 2d Death 435 (2003); see also Ahn v. Kim,
678 A.2d 1073, 1081-82 (N.J. 1996) (discussing presumption of
death and evidence to rebut presumption in wrongful death case);
In re Geiger, 3 Cal. App. 4th 127, 135-36, 4 Cal. Rptr. 2d 252,
256-57 (Cal. App. 1992) (noting that statutory presumption of
death can be rebutted).
36 Carman, 748 P.2d at 745 (noting that widow did not
explain nearly fifteen year delay in making claim).
37 In addition to the contacts we have already noted
between Cartrie and the board, it appears that Edward II
contacted the Fairbanks court in 2002 about filing a second
presumptive death petition and was discouraged from doing so.
38 Carman, 748 P.2d at 743, 745.
39 Olsen Logging Co. v. Lawson, 832 P.2d 174, 175 (Alaska
1992).
40 Tunley v. Municipality of Anchorage Sch. Dist., 631
P.2d 67, 72-73 (Alaska 1981).
41 We are referring to our Standing Advisory Committee on
the Rules of Civil Procedure the question of modifying or
clarifying Rule 42(c) to specify when participation in a hearing
can serve to waive a partys right to peremptorily challenge a
judge, even if the party is unaware that the judge has been
permanently assigned to the case.
42 Harp v. ARCO Alaska, Inc., 831 P.2d 352, 358 (Alaska
1992).
43 The boards decision reads, in relevant part:
We consistently require an employer or
insurer to have specific evidence on which to
base a controversion. We have found that
reasonable minds can differ in the legal
interpretation of discrepancies in the
evidence available, and such discrepancies
can be significant enough to support a good
faith controversion.
We find the instant case is one of first
impression in Alaska. Given that the effect
of a Presumptive Death Certificate had not
yet been addressed in our state, given that
the extended attempts to find the body had
not been successful, and given the rumors of
the employees survival, we cannot find that
the employer did not act in good faith in
filing its controversion. Accordingly, we
conclude no penalty is due. . . .
(Citations omitted.)
44 Cf. Lajiness v. H.C. Price Constr. Co., 811 P.2d 1068,
1070 (Alaska 1991) (holding that boards factual prediction was
speculative and could not provide basis for boards calculation of
wage rate).
45 See Harp, 831 P.2d at 358 (citing Kerley v. Workmens
Comp. App. Bd., 481 P.2d 200, 205 (Cal. 1971)). Our citation to
Kerley indicates that doubt from a legal standpoint is a
permissible basis for a controversion. Id. See also Thoeni v.
Consumer Elec. Servs., Inc., 151 P.3d 1249, 1259 (Alaska 2007)
(indicating that refusal to sign board releases or attend
required medical exam is basis for good faith controversion).
The board has interpreted Harp as permitting controversions based
on the statute of limitations. See Booth v. Golden Van Lines,
AWCB Decision No. 99-0084 (April 16, 1999) (finding controversion
based on statute of limitations justified). The Irbys do not
argue here that controversions based on legal issues are
impermissible.
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