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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bohlmann v. Alaska Construction & Engineering, Inc. (04/17/2009) sp-6362
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
| THEODORE A. BOHLMANN, | ) |
| ) Supreme Court No. S- 12553 | |
| Appellant, | ) |
| ) Alaska Workers Compensation | |
| v. | ) Appeals Commission No. 06- 008 |
| ) | |
| ALASKA CONSTRUCTION & | ) O P I N I O N |
| ENGINEERING, INC., NORTH | ) |
| AMERICAN SPECIALTY | ) No. 6362 April 17, 2009 |
| INSURANCE, Its Workers | ) |
| Compensation Carrier, and WILTON | ) |
| ADJUSTMENT SERVICE, Its | ) |
| Workers Compensation Adjuster, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Alaska Workers Compensation
Appeals Commission, Kristin Knudsen, Chair.
Appearances: Theodore A. Bohlmann, pro se,
Colfax, Washington, Appellant. Robin Jager
Gabbert and Merrilee S. Harrell, Russell,
Wagg Gabbert & Budzinski, Anchorage, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
EASTAUGH, Justice.
I. INTRODUCTION
To what extent must the Alaska Workers Compensation
Board inform or guide pro se claimants? Alaska Statute
23.30.110(c) requires denial of a workers compensation claim if
the claimant does not file a request for a hearing within two
years after the employer files a controversion notice. Pro se
claimant Theodore Bohlmann filed his request for hearing August
31, 2005, slightly more than two years after his employer filed a
notice of controversion on August 6, 2003. The board then denied
his claim. Because the board should have corrected the employers
erroneous assertion made at a July 2005 prehearing conference
that the claim was already time barred, we reverse and remand so
that the board may determine the merits of Bohlmanns compensation
rate claim.
II. FACTS AND PROCEEDINGS
Theodore Bohlmann began working as an excavation
operator for Alaska Construction & Engineering (AC&E) at an
Eklutna rock quarry in late June 2001. On July 29, 2001, a
falling boulder and several smaller rocks hit him when he got out
of his excavator at the work site. Bohlmann was pinned under the
rocks for about half an hour before being taken to the hospital.
He broke his left ankle, left leg, and some toes in his left
foot, and he had a deep cut on his right knee that required
surgery. AC&E initially paid him temporary total disability
(TTD) benefits at a rate of $168 per week; it later paid him
permanent partial impairment (PPI) benefits.
Bohlmann filed a pro se claim for adjustment of his
compensation rate on February 11, 2002. He asserted, apparently
based on advice he received from staff at the Division of Workers
Compensation,1 that his rate should have been calculated using AS
23.30.220(a)(10) rather than AS 23.30.220(a)(6). AC&E filed an
answer denying Bohlmanns claim, but did not file a notice of
controversion. At two 2002 prehearing conferences, the
prehearing officer told Bohlmann he would have to file and serve
an affidavit of readiness for hearing within two years after the
employer controverted his claim.
On July 10, 2003, Bohlmann filed another workers
compensation claim. It requested an adjustment in his
compensation rate based on overtime he said had not been included
when his compensation was calculated. On August 6, 2003, AC&E
filed a controversion notice controverting the compensation rate
adjustment claim and asserting that Bohlmanns compensation rate
had been correctly computed under AS 23.30.220(a)(6). AC&Es
notice did not specify the date of the claim or claims it
controverted. From September to December 2003, Bohlmann filed
four more claims, three of which claimed an unfair or frivolous
controversion.
Over the next few years a board designee held several
prehearing conferences on various issues and claims. An attorney
represented Bohlmann for about eight months but did not file an
affidavit of readiness for hearing. At a prehearing conference
on July 20, 2005, Bohlmann, who was by then again pro se, asked
to amend his June 8, 2005 TTD benefits claim to include a
compensation rate adjustment claim. AC&E objected, contending
that Bohlmann had previously filed compensation rate adjustment
claims that were barred by AS 23.30.110(c). The record does not
indicate that the board designee who conducted the July 20
prehearing conference informed Bohlmann either that the time bar
in subsection .110(c) had not in fact run yet or that the
deadline for submitting an affidavit of readiness for hearing was
actually August 6, 2005, two years after AC&E had filed its
notice of controversion. With the assistance of division staff,
Bohlmann filed on August 31, 2005 an affidavit of readiness for
hearing in which he requested a hearing on claims he filed on
September 9, 2003; September 16, 2003; October 20, 2003; and
December 10, 2003. AC&E filed an opposition.
The parties stipulated to a hearing on the
applicability of AS 23.30.110(c) to Bohlmanns rate adjustment
claims; the hearing took place in January 2006. AC&E presented
testimony from the workers compensation officer who handled most
of the prehearing conferences in Bohlmanns case. She testified
that as far as she remembered, the prehearing conference
summaries accurately reflected what happened at the prehearing
conferences and that she had, on several occasions, informed
Bohlmann that he needed to file an affidavit of readiness for
hearing within two years of the filing of a controversion.
Bohlmann was pro se and did not testify. He mentioned in his
opening statement that he had difficulty working through the
workers comp system and that he was in contact with division
staff getting advice. He argued in his closing statement that
(1) he thought the controversion had been lifted; (2) he had
trouble filling out the affidavit of readiness for hearing that
he successfully submitted; and (3) his affidavit of readiness was
only about twenty days late.
The board ruled that Bohlmanns claim for a compensation
rate adjustment [was] denied and dismissed pursuant to AS
23.30.110(c). It found that subsection .110(c)s two-year period
for filing an affidavit of readiness for hearing began running
when AC&E filed the August 6, 2003 controversion notice; that
division staff had told Bohlmann the consequences of failing to
file a timely affidavit; and that Bohlmann did not file an
affidavit until August 31, 2005, about twenty-five days after the
two-year period for filing a hearing request expired. The board
decided that Bohlmanns belief that the controversion had been
lifted and the fact that his affidavit was only twenty days late
did not justify his untimeliness. It further found that even if
the August 31, 2005 [affidavit of readiness for hearing] were not
late, the claim for a compensation rate adjustment would still be
barred, as the [affidavit of readiness for hearing] applied only
to [workers compensation claims] other than the ones requesting
the rate adjustment.
Bohlmann appealed to the Alaska Workers Compensation
Appeals Commission. He raised or seemed to raise three appellate
arguments to excuse missing the filing deadline: (1) he had
received inadequate assistance from the board; (2) the board had
broad power to extend the deadline and abused its discretion in
not accepting a late-filed request for hearing; and (3) his
former attorney had not adequately represented his interests.
AC&E responded that (1) the time bar in subsection .110(c) is not
discretionary; (2) Bohlmann had plenty of notice that he needed
to file an affidavit of readiness for hearing; and (3) no facts
in Bohlmanns case justified tolling the statute.
The appeals commission affirmed. It decided that there
was substantial evidence in the record that Bohlmann filed his
affidavit of readiness for hearing more than two years after his
rate adjustment claims were formally controverted and that he was
adequately informed of the time bar in AS 23.30.110(c) and the
consequences of filing an untimely request. It decided that
because the time bar is statutory, the board had no equitable
power to excuse his late filing.
Bohlmann appeals. He is pro se on appeal.
III. DISCUSSION
A. Standard of Review
In workers compensation appeals from decisions of the
appeals commission, we review the commissions decision because it
is the final administrative action.2 In deciding whether the
appeals commission erred in reviewing the boards factual
findings, discretionary decisions, and legal rulings, we
independently assess the boards rulings and in doing so apply the
appropriate standards of review. Proper application of a statute
of limitations presents a question of law to which we apply our
independent judgment.3 Applying the independent judgment
standard, we adopt the rule of law that is most persuasive in
light of precedent, reason, and policy.4 When an agency
interprets and applies its own regulations, we review the agency
action for an abuse of discretion.5 Because the appeals
commission and the board appear to have engaged in a fact-based
analysis of whether the board satisfied its duty adequately to
advise Bohlmann of his rights and how to secure them, we review
the boards decision for abuse of discretion.
B. The Board Should Correct Mistaken Information.
Bohlmann argues that board staff failed to adequately
advise him how to preserve his right to compensation. Before
considering that contention, we must consider what duty the board
or the division owes self-represented claimants to advise them of
claim procedures.
Alaska Statute 23.30.110(c) sets out the procedure a
party must follow to request a hearing before the board and the
deadlines related to this request. It provides in part, If the
employer controverts a claim on a board-prescribed controversion
notice and the employee does not request a hearing within two
years following the filing of the controversion notice, the claim
is denied.6 We have held that subsection .110(c)s two-year
period begins to run only after an employer controverts an
employees written workers compensation claim.7 The board found,
and no one disputes, that AC&Es August 6, 2003 controversion
notice start[ed] the AS 23.30.110(c) time clock so that Bohlmann
should have filed his affidavit of readiness for hearing by
August 6, 2005.
A central issue inherent to Bohlmanns appeal is the
extent to which the board must inform a pro se claimant of the
steps he must follow to preserve his claim. The parties agree
that the board designee who presided at the prehearing
conferences gave Bohlmann general information about the two-year
time bar. The board and then the appeals commission determined
that Bohlmann had been adequately and correctly informed of the
time bar and the consequences of not filing an affidavit of
readiness for hearing.
In Richard v. Firemans Fund Insurance Co. we held that
the board must assist claimants by advising them of the important
facts of their case and instructing them how to pursue their
right to compensation.8 We have not considered the extent of the
boards duty to advise claimants. The appeals commission
emphasized that division staff have a duty to be impartial and
stated that [a]cting on behalf of one party against another or
pursuing a claim on behalf of one party in a matter before the
board would violate the duty of the adjudicators. The appeals
commission determined that the prehearing conference officer
fulfilled the requirements of Richard by informing Bohlmann in
general terms of the two-year time bar.
It may be arguable in such a case that the board had a
duty to tell the claimant that the two-year period was running;
it may also be arguable that it had a duty to tell him when the
period began running, or even the specific date on which the
deadline would expire. But we do not need to consider the full
extent of the duty here. The board designee or the board should
have corrected the erroneous assertion made by AC&E at the July
20, 2005 prehearing conference that the subsection .110(c)
deadline had already run, but did not do so. Alternatively, the
designee or the board should at least have told Bohlmann
specifically how to determine whether, as AC&E asserted, the
deadline had already run and how to determine the actual
deadline. This minimal information would have made it clear to
the claimant both the correct deadline and that he still had more
than two weeks in which to submit the required affidavit.
By attempting at that conference to amend his June 2005
claim to include a claim for compensation rate adjustment,
Bohlmann manifested an intent to prosecute the rate adjustment
claim.9 AC&Es July 20, 2005 contention that the rate adjustment
claim was already barred was incorrect; in fact, Bohlmann had
until August 6, 2005 in which to file his affidavit of readiness.10
We do not need to decide here whether the prehearing officer had
a duty to tell Bohlmann the exact date, August 6, by which he
needed to file an affidavit of readiness for hearing in order to
preserve his claim. Given AC&Es incorrect statement about the
timeliness of the rate adjustment claim and Bohlmanns request to
include a compensation rate adjustment claim in the later claim,
the prehearing officer should have told Bohlmann in more than
general terms how he might still preserve the claim, or at least
specifically how Bohlmann could determine whether AC&E was
correct in contending that the claim was already barred. This
requirement is similar to our holdings about the duty a court
owes to a pro se litigant.11
We have held that a trial court has a duty to inform a
pro se litigant of the necessity of opposing a summary judgment
motion with affidavits or by amending the complaint.12 We
likewise have held that a trial court must tell a pro se litigant
that he needs an expert affidavit in a medical malpractice case13
and must inform him of deficiencies in his appellate paperwork,
giving him an opportunity to correct them.14 When a pro se
litigant alerted a trial court that the opposing party had not
complied with her discovery requests, we held that the court
should have informed her of the basic steps she could take,
including the option of filing a motion to compel discovery.15 In
evaluating the accuracy of notice of procedural rights by an
opposing party, we have noted that pro se litigants are not
always able to distinguish between what is indeed correct and
what is merely wishful advocacy dressed in robes of certitude.16
The board, as an adjudicative body with a duty to assist
claimants, has a duty similar to that of courts to assist
unrepresented litigants.
Here, the board at a minimum should have informed
Bohlmann how to preserve his claim or specifically how to
evaluate the accuracy of AC&Es representation that the claim was
time barred. Its failure to recognize that it had to do so in
this case was an abuse of discretion.17 Its failure to do so is
inconsistent with the appeals commissions conclusion that
division staff did all that Richard required.
Correcting AC&Es misstatement or telling Bohlmann the
actual date by which he needed to file an affidavit of readiness
for hearing to preserve his claim would not have been advocacy
for one party or the other.18 Indeed, at oral argument before us,
counsel for AC&E stated that it would have been just fine for a
board employee to have informed Bohlmann of the actual deadline
for filing an affidavit of readiness for hearing. Because there
is no indication in the appellate record that the board or its
designee informed Bohlmann of the correct deadline or at least
how to determine what the correct deadline was, the board should
deem his affidavit of readiness for hearing timely filed.19 This
is the appropriate remedy because the boards finding that
Bohlmann had proved himself capable of filing claims and
petitions even absent having counsel20 is consistent with a
presumption that Bohlmann would have filed a timely affidavit of
readiness had the board or staff satisfied its duty to him.
IV. CONCLUSION
We REVERSE the decisions of the appeals commission and
the board and REMAND to the appeals commission with instructions
to remand to the board for further proceedings consistent with
this opinion.
_______________________________
1 We refer to division staff and board staff
interchangeably in this opinion.
2 Barrington v. Alaska Commcn Sys. Group, Inc., 198 P.3d
1122, 1129 (Alaska 2008).
3 Bailey v. Texas Instruments, Inc., 111 P.3d 321, 323
(Alaska 2005).
4 Seybert v. Cominco Alaska Exploration, 182 P.3d 1079,
1089 (Alaska 2008).
5 J. L. Hodges v. Alaska Constructors, Inc., 957 P.2d
957, 960 (Alaska 1998).
6 AS 23.30.110(c) provides:
Before a hearing is scheduled, the party
seeking a hearing shall file a request for a
hearing together with an affidavit stating
that the party has completed necessary
discovery, obtained necessary evidence, and
is prepared for the hearing. An opposing
party shall have 10 days after the hearing
request is filed to file a response. If a
party opposes the hearing request, the board
or a board designee shall within 30 days of
the filing of the opposition conduct a
pre-hearing conference and set a hearing
date. If opposition is not filed, a hearing
shall be scheduled no later than 60 days
after the receipt of the hearing request.
The board shall give each party at least 10
days notice of the hearing, either personally
or by certified mail. After a hearing has
been scheduled, the parties may not stipulate
to change the hearing date or to cancel,
postpone, or continue the hearing, except for
good cause as determined by the board. After
completion of the hearing the board shall
close the hearing record. If a settlement
agreement is reached by the parties less than
14 days before the hearing, the parties shall
appear at the time of the scheduled hearing
to state the terms of the settlement
agreement. Within 30 days after the hearing
record closes, the board shall file its
decision. If the employer controverts a
claim on a board-prescribed controversion
notice and the employee does not request a
hearing within two years following the filing
of the controversion notice, the claim is
denied.
7 Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121, 1124
(Alaska 1995).
8 Richard v. Firemans Fund Ins. Co., 384 P.2d 445, 449
(Alaska 1963). In Richard we held that the board has a duty of
fully advising [a claimant] as to all the real facts which bear
upon his condition and his right to compensation, so far as it
may know them, and of instructing him on how to pursue that right
under the law. Id. at 449.
9 See Gilbert v. Nina Plaza Condo Assn, 64 P.3d 126, 129
(Alaska 2003) (noting pro se litigants attempts to inform court
of discovery difficulties).
10 In its January 13, 2006 hearing brief before the board,
AC&E asserted that Bohlmann had until August 6, 2005 to request a
hearing. The board agreed that the deadline was August 6, 2005.
11 See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987)
(stating that trial judge should inform pro se litigant of proper
procedure for action litigant is obviously attempting to
accomplish); cf. Prentzel v. State, Dept of Pub. Safety, 169 P.3d
573, 593 (Alaska 2007) (noting that court notified pro se
litigant of deadlines for motions).
12 Hymes v. Deramus, 119 P.3d 963, 966 (Alaska 2005)
(quoting Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265, 1273
(Alaska 2001)).
13 Id. at 966.
14 Dougan v. Aurora Elec. Inc., 50 P.3d 789, 795 (Alaska
2002).
15 Gilbert, 64 P.3d at 129.
16 Hymes, 119 P.3d at 967.
17 Snyder v. American Legion Spenard Post 28, 119 P.3d
996, 1001 (Alaska 2005) (reviewing courts decision on guidance to
pro se litigant for abuse of discretion).
18 See John M. Greacen, Legal Information vs. Legal Advice
Developments During the Last Five Years, 84 Judicature 198, 198-
99 (2001) (stating that answering questions about deadlines and
due dates is legal information).
19 Cf. Crum v. Stalnaker, 936 P.2d 1254, 1258 (Alaska
1997) (noting agencys failure to provide information when it had
duty to do so).
20 The commission held on appeal that substantial evidence
supported this finding.
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