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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Monzulla v. Voorhees Concrete Cutting (6/24/2011) sp-6570
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, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KENNETH MONZULLA, )
) Supreme Court No. S-13640
Appellant, )
) Alaska Workers' Compensation
v. ) Appeals Commission No. 08-032
)
VOORHEES CONCRETE ) O P I N I O N
CUTTING and ALASKA NATIONAL) )
INSURANCE COMPANY, ) No. 6570 - June 24, 2011
)
)
Appellees. )
)
)
Appeal from the Alaska Workers' Compensation Appeals
Commission, Kristin S. Knudsen, Commission Chair.
Appearances: James M. Hackett, Law Office of James M.
Hackett, Fairbanks, for Appellant. Richard L. Wagg and
Vicki A. Paddock, Russell, Wagg, Gabbert & Budzinski,
P.C., Anchorage, for Appellees.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
CARPENETI, Chief Justice.
I. INTRODUCTION
Does the Alaska Workers' Compensation Appeals Commission have
subject matter jurisdiction to review interlocutory orders of the Alaska Workers'
Compensation Board before a final Board decision? In 2006 the Commission decided
that it had implied jurisdiction to hear motions for extraordinary review, which are
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similar to petitions for review in the appellate courts. In 2008 an employer asked the
Commission to review and to stay the Board's non-final order denying a change of venue
from Fairbanks. The Commission first issued a partial stay, permitting the case to go
forward in any venue other than Fairbanks. It later reviewed the merits of the Board's
decision to deny the change of venue and reversed it. The employee contends that the
Commission did not have subject matter jurisdiction over motions for extraordinary
review because the legislature only granted the Commission jurisdiction to hear appeals
of final Board orders. Because we find that jurisdiction to hear interlocutory appeals is
necessarily incident to the Commission's express power to hear appeals from final Board
decisions, we affirm the Commission's decision.
II. FACTS AND PROCEEDINGS
Kenneth Monzulla hurt his back in 1999 when he was working for
Voorhees Concrete Cutting in Fairbanks. As the Board noted in one of its decisions in
the case, "[t]he medical and legal records in this case are voluminous." In September
2001, the parties entered a partial compromise and release agreement to settle all issues
except future medical care for his lumbar and thoracic spine; their more recent
substantive disputes have involved the extent of this medical care.
The parties have also disagreed about venue for the proceedings. Because
Monzulla injured his back in Fairbanks, venue for Board proceedings related to his injury
was initially in Fairbanks.1 Monzulla moved to the Kenai Peninsula in 2002, and his
treating physician at the time of the Board proceeding was in Soldotna. Voorhees twice
asked the Board to change venue from Fairbanks to Anchorage, arguing that it would be
less costly and time consuming to have hearings in Anchorage. Monzulla, appearing pro
1 8 Alaska Administrative Code (AAC) 45.072 (2011) (setting venue in "the
city nearest the place where the injury occurred" unless circumstances justify change of
venue).
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se, opposed Voorhees's requests to change venue because the Fairbanks office was
already familiar with his case.
Voorhees's first petition for a change of venue was filed in November 2006.
After a hearing, the Board denied the petition, finding that "Fairbanks [would] better
serve the balanced interests of the parties, witnesses, and the [Board], and would provide
a speedier remedy." The Board held a hearing on March 1, 2007, on various claims
raised by Monzulla; in its decision, it granted some claims and denied others. Voorhees
appealed the Board's final decision to the Commission and at the same time appealed the
interlocutory order denying its petition for change of venue. On February 4, 2008, the
Commission affirmed in part and reversed in part the Board's orders. On the venue issue,
the Commission affirmed the Board's denial of a change of venue with a cautionary
instruction to the Board not to consider its own interest when evaluating a change of
venue request.
On July 16, 2008, Voorhees again petitioned the Board to change venue;
the Board again denied the petition. Voorhees filed a motion for extraordinary review
and request for stay with the Commission on October 24, 2008. The Commission
granted extraordinary review of the venue question, stayed the Board proceedings "in the
northern venue, but not proceedings in other venues," and invited the participation of the
director of the Division of Workers' Compensation because of the question's potential
impact on Board procedure.2 Monzulla filed a letter with the Commission, which it
construed as a motion for reconsideration of its grant of extraordinary review. The
Commission denied reconsideration.
2 The director filed a Notice of Limited Intervention for Purposes of
Supplementing the Record with an attached affidavit on January 12, 2009, but did not
participate further.
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In its decision on the merits, the Commission decided that the Board had
abused its discretion in failing to change venue to Anchorage "because it relied on an
impermissible consideration, its own interest, under 8 [Alaska Administrative Code]
45.072(2) and because it lacked sufficient evidence to find that Fairbanks was a more
convenient forum than Anchorage for the parties and witnesses."
After the Commission reversed the Board's venue decision, an attorney
entered an appearance on behalf of Monzulla and moved for reconsideration of the
Commission's decision. He argued that the Commission did not have subject matter
jurisdiction to consider the motion for extraordinary review and had misconstrued the
case law in its discussion of the law of the case doctrine. The Commission declined to
consider Monzulla's challenge to its subject matter jurisdiction because he had not raised
it previously in the appeal and had not distinguished Commission precedent on the
subject. But it ordered briefing on whether it had misconstrued our case law. Monzulla
filed an appeal in this court related to the Commission's subject matter jurisdiction on
October 2, 2009. On October 8, 2009, the parties filed a stipulation with the Commission
dismissing Monzulla's motion for reconsideration; the Commission issued an order
dismissing the motion for reconsideration and indicating that its decision dated August
6, 2009, was the final decision of the appeals commission. Monzulla appeals the
Commission's exercise of jurisdiction over the motion for extraordinary review and its
partial stay of the Board's venue order.
III. STANDARD OF REVIEW
In an appeal from the Alaska Workers' Compensation Appeals
Commission, we review the Commission's decision rather than the Board's decision.3
We apply our independent judgment to questions of law that do not involve agency
3 Barrington v. Alaska Comm'ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska
2008).
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expertise.4 We likewise apply our independent judgment to questions of statutory
interpretation.5
IV. DISCUSSION
A. Monzulla's Challenge To Subject Matter Jurisdiction Was Timely.
Monzulla contends that the Commission erred because it did not consider
whether it had jurisdiction to hear interlocutory appeals. He asserts that his "failure to
object to the Commission's lack of subject matter jurisdiction [before reconsideration]
is immaterial."
The Commission refused to consider Monzulla's challenge to its subject
matter jurisdiction because he did not raise it until he moved for reconsideration of its
decision on the merits and had not established "that there [were] grounds to distinguish
or overturn" Eagle Hardware & Garden v. Ammi.6 The Commission stated that
"AS 23.30.180(f) [did] not permit [Monzulla] to raise a legal issue for the first time on
reconsideration, especially one that [was] not closely related to any points raised or
decided in the appeal."
4 Id.
5 Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003).
6 AWCAC Dec. No. 003 (Feb. 21, 2006), available at
http://labor.state.ak.us/WCcomm/orders.htm. In Ammi, the Commission decided that it
had implied jurisdiction to review interlocutory Board orders before a final decision of
the Board. Id. at 8-9.
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The question of subject matter jurisdiction can be raised at any time,7 and
a court can raise the issue of its subject matter jurisdiction sua sponte.8 Therefore, we
conclude that Monzulla's challenge was not untimely.9 But any error was harmless, as
set out below in Part IV.C.
B. The Legislature Did Not Explicitly Grant Interlocutory Review
Jurisdiction To The Commission.
Monzulla's appeal raises the question whether the Commission has
jurisdiction to review interlocutory Board orders before the Board issues a final decision.
He argues, based on the statutory language, that the legislature did not grant the
Commission this power. Monzulla contends that the legislature "was aware of how to
fashion broad extraordinary discretionary review power when it enacted the
Commission's statutory powers and authority" but chose to limit the Commission's
jurisdiction to review of final decisions. Because the legislature in AS 23.30.007(a)
limited the Commission's jurisdiction to administrative appeals,10 Monzulla insists that
7 Nw. Med. Imaging, Inc. v. State, Dep't of Revenue, 151 P.3d 434, 438 n.5
(Alaska 2006) (citing Hydaburg Coop. Ass'n v. Hydaburg Fisheries, 925 P.2d 246, 248
(Alaska 1996)) (noting that challenge to agency jurisdiction was raised during second
appeal to superior court).
8 See Hydaburg Coop. Ass'n, 925 P.2d at 248 (quotingBurrell v. Burrell, 696
P.2d 157, 162 (Alaska 1984)) (noting that subject matter jurisdiction must be raised by
the court if noticed and not raised by one of the parties).
9 To the extent the Commission implied that Monzulla had to raise a subject
matter jurisdiction challenge at a specific time, it erred.
10 AS 23.30.007(a) provides, in relevant part:
The commission has jurisdiction to hear appeals from
final decisions and orders of the board under this chapter.
Jurisdiction of the commission is limited to administrative
(continued...)
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the legislature did not intend to give the Commission power to review non-final Board
decisions.
Voorhees responds that the legislature directly granted jurisdiction over
interlocutory appeals to the Commission. Voorhees asks us to interpret the statute,
particularly AS 23.30.125(b)11 and AS 23.30.128(b),12 as giving the Commission
authority to hear motions for extraordinary review. According to Voorhees, these
statutory sections are meaningless unless construed as granting the Commission
interlocutory appellate jurisdiction.
We interpret a statute "according to reason, practicality, and common sense,
taking into account the plain meaning and purpose of the law as well as the intent of the
10 (...continued)
appeals arising under this chapter.
11 AS 23.30.125(b) states:
Notwithstanding other provisions of law, a decision or
order of the board is subject to review by the commission as
provided in this chapter.
12 AS 23.30.128(b) states:
The commission may review discretionary actions,
findings of fact, and conclusions of law by the board in
hearing, determining, or otherwise acting on a compensation
claim or petition. The board's findings regarding the
credibility of testimony of a witness before the board are
binding on the commission. The board's findings of fact
shall be upheld by the commission if supported by substantial
evidence in light of the whole record. In reviewing questions
of law and procedure, the commission shall exercise its
independent judgment.
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drafters."13 Our goal in interpreting a statute is "to give effect to the legislature's intent,
with due regard for the meaning the statutory language conveys to others."14 We
construe a statute "in light of its purpose."15
In construing a statute, we look at the meaning of the words used and the
legislative history.16 "[W]e will presume 'that the legislature intended every word,
sentence, or provision of a statute to have some purpose, force, and effect, and that no
words or provisions are superfluous.' "17 All sections of a statute should "be construed
together so that all have meaning and no section conflicts with another."18
As noted, Voorhees argues that in AS 23.30.125(b) and AS 23.30.128(b)
the legislature specifically granted the Commission jurisdiction to review interlocutory
orders. According to Voorhees, these statutory subsections are meaningless unless they
grant the Commission discretionary review jurisdiction. Voorhees contends that if they
are not interpreted this way, they would be in conflict with AS 23.30.007(a) and
AS 23.30.008(a).
13 Grimm v. Wagoner, 77 P.3d 423, 427 (quotingNative Vill. of Elim v. State,
990 P.2d 1, 5 (Alaska 1999)).
14 Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787 (Alaska 1996)
(quoting Tesoro Alaska Petroleum, Inc. v. Kenai Pipe Line Co., 746 P.2d 896, 905
(Alaska 1987)).
15 Beck v. State, Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 117 (Alaska
1992) (citing Vail v. Coffman Eng'rs, Inc., 778 P.2d 211 (Alaska 1989)).
16 Alaskans for a Common Language v. Kritz, 170 P.3d 183, 192 (Alaska
2007) (citing State v. Alex, 646 P.2d 203, 208 n.4 (Alaska 1982)).
17 Mech. Contractors of Alaska, Inc. v. State, Dep't of Pub. Safety, 91 P.3d
240, 248 (Alaska 2004) (quoting Kodiak Island Borough v. Exxon Corp., 991 P.2d 757,
761 (Alaska 1999)).
18 In re Hutchinson's Estate, 577 P.2d 1074, 1075 (Alaska 1978).
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The parties agree that "all sections of an act are to be construed together so
that all have meaning and no section conflicts with another."19 Voorhees contends that
the statutory subsections at issue here - AS 23.30.007(a), AS 23.30.008(a),
AS 23.30.125(b), and AS 23.30.128(b) - cannot be construed together unless they are
read as a direct grant of interlocutory review jurisdiction to the Commission. We
disagree.
The statutory subsections at issue here can be harmonized. Alaska Statute
23.30.007(a) is the express grant of jurisdiction to the Commission; its jurisdiction is
"limited to administrative appeals." Alaska Statute 23.30.008(a) provides that the
Commission's decisions are final and conclusive and have the force of precedent for the
Commission and the Board; it expressly limits the Commission's jurisdiction to workers'
compensation cases. Alaska Statute 23.30.125(b) clarifies that review of Board decisions
is done by the Commission, not the superior court. Alaska Statute 23.30.128(b) sets out
the Board actions the Commission can review and the standards of review for the
Commission to apply.20 Thus, nothing in the statutory language explicitly gives the
Commission jurisdiction over discretionary review of non-final Board decisions.
C. The Commission Has Implied Jurisdiction To Hear Interlocutory
Appeals.
We next consider whether the Commission has implied jurisdiction to hear
interlocutory appeals. We have previously held that the Board has implied powers. In
Wausau Insurance Cos. v. Van Biene we decided that the Board had implied jurisdiction
19 Id.
20 Because we agree with Monzulla that the statutory sections can be
harmonized, we do not need to consider whether one section is more specific. Nat'l Bank
of Alaska v. State, Dep't of Revenue, 642 P.2d 811, 817-18 (Alaska 1982) (quoting State,
Dep't of Highways v. Green, 586 P.2d 595, 602 (Alaska 1978)).
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----------------------- Page 10-----------------------
to apply equitable principles, such as estoppel, in workers' compensation proceedings.21
And we decided that the Board had implied jurisdiction to set aside a compromise and
release agreement because of fraud in Blanas v. Brower.22 In both instances we
determined that the implied power was necessarily incident to the Board's express
23
powers.
In deciding whether an administrative agency has properly exercised an
implied power, other courts have considered whether the implied power is consistent
with the legislature's objectives in granting powers to the administrative agency,24 the
nature of the administrative proceeding,25 and "whether the circumstances, in relation to
the type of proceeding, require the agency to exercise its implied and incidental
powers."26
Applying these principles here, we hold that the Commission has implied
jurisdiction to review interlocutory Board orders. The Commission "performs a quasi-
judicial function that is akin to appellate review."27 In some circumstances, delay of
review until a final decision on the merits can make review pointless. This case is one
21 847 P.2d 584, 588 (Alaska 1993).
22 938 P.2d 1056, 1061-62 (Alaska 1997).
23 Id.; Van Biene, 847 P.2d at 588.
24 Unite Here! Local 5 v. City & Cnty. of Honolulu, 231 P.3d 423, 449 (Haw.
2010).
25 Hawes v. Colo. Div. of Ins., 65 P.3d 1008, 1017-18 (Colo. 2003) (en banc)
(holding that the legislature had established a type of cy pres proceeding so that Division
of Insurance had implied authority to award common fund attorney's fees).
26 Id.
27 Alaska Pub. Interest Research Grp. v. State, 167 P.3d 27, 36 (Alaska 2007).
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example: Review of an improper refusal to change venue is pointless after a final
decision on the merits when there may be no further proceedings. Similarly, if the Board
improperly required an employee to undergo apsychiatric examination, a delay in review
could subject the employee to an intrusive and unnecessary examination.28 Discretionary
appellate review of non-final orders may at times be necessary to ensure fundamental
fairness to the parties.
The goal of the statutory amendment that established the Commission was
"to increase the efficiency and flexibility of the current system . . . and reduce some of
its costs."29 The legislation eliminated superior court review of workers' compensation
cases and substituted review by the Commission.30 Creation of the Commission was
intended "to provide 'consistent, legally precedential decisions in an expeditious
manner.' "31
Discretionary review jurisdiction in the Commission can further all of these
goals: increasing efficiency, providing precedential decisions from a body with expertise
in workers' compensation, and reducing costs in workers' compensation appeals.
Discretionary review can speed the ultimate resolution of a case when review concerns
a controlling legal issue.32 In this case, the ultimate decision on the merits may have been
28 Cf. BP Exploration Alaska, Inc. v. Stefano, AWCAC Dec. No. 76 (Alaska
2008) (denying extraordinary review of protective order preventing employer from
compelling employee to attend psychiatric medical evaluation).
29 2005 Senate Journal 465.
30 Alaska Pub. Interest Research Grp., 167 P.3d at 37, 40.
31 Id. at 39 (quoting 2005 Senate Journal 465).
32 Cf. Thurston v. Guys With Tools, Ltd., 217 P.3d 824, 825 (Alaska 2009)
(granting review to ensure that proper legal standard was applied on remand).
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delayed,33 but we agree with Voorhees that the venue question was one which would
evade meaningful review without interlocutory appellate jurisdiction.
We have already noted that, in creating the Commission, the legislature
intended to replace review by the superior court with review by the Commission. We
agree with Voorhees that the legislature wanted those seeking review of Board decisions
to have the same procedural rights of review that they had in the superior court. We
recognize, as Monzulla argues, that the discretionary review previously available in the
superior court has a different origin34 than the Commission's authority to hear
interlocutory appeals, but nothing in the legislative history indicates that the legislature
wanted employers or employees to have fewer rights of review before the Commission
than before the superior court. We conclude that the Commission had implied
jurisdiction to grant discretionary review of the venue decision.35
D. The Commission Had Authority To Stay The Board's Decision.
Monzulla argues separately that the Commission was without jurisdiction
to stay the Board's decision because the workers' compensation statute and the
Commission's regulations only permit stays of "compensation orders," which are a
limited class of Board orders. Voorhees does not address this argument separately.
33 The Board hearing in Fairbanks on the merits of the claim was scheduled
for November 14, 2008. The Commission issued its decision reversing the Board on
August 6, 2009. The Board issued its final decision and order on reconsideration in the
case on December 7, 2010. Monzulla v. Voorhees Concrete Cutting, AWCB Dec. No.
10-0200 (Dec. 7, 2010).
34 See AS 22.10.020(d); AS 23.30.129; Alaska R. App. P. 610.
35 Monzulla did not appeal the merits of the Commission's venue decision or
its application of the law of the case doctrine to his case, so we express no opinion on
these issues.
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The only provision of the Alaska Workers' Compensation Act related to
stays by the Commission is AS 23.30.125(c), which states:
If a compensation order is not in accordance with law or fact,
the order may be suspended or set aside, in whole or in part,
through proceedings in the commission brought by a party in
interest against all other parties to the proceedings before the
board. The payment of the amounts required by an award
may not be stayed pending a final decision in the proceeding
unless, upon application for a stay, the commission, on
hearing, after not less than three days' notice to the parties in
interest, allows the stay of payment in whole or in part, where
the party filing the application would otherwise suffer
irreparable damage. Continuing future periodic
compensation payments may not be stayed without a showing
by the appellant of irreparable damage and the existence of
the probability of the merits of the appeal being decided
adversely to the recipient of the compensation payments. The
order of the commission allowing a stay must contain a
specific finding, based upon evidence submitted to the
commission and identified by reference to the evidence, that
irreparable damage would result to the party applying for a
stay and specifying the nature of the damage.
Monzulla does not dispute that the legislature gave the Commission some
power to stay Board decisions; he argues that because a compensation order refers only
to a Board order denying a claim or making an award of compensation,36 the statute
permits the Commission to stay only compensation orders, not other Board decisions.
Given the purposes of the legislation, we do not think that the legislature
intended the Commission's power to issue stays to be confined to compensation orders.
The statutory language does not expressly limit stays to compensation orders nor does
it prohibit stays of other Board orders. The statute sets out the standards the Commission
36 AS 23.30.110(e).
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must apply when a party seeks to stay a monetary award from the Board.37 Although
"[t]here is a presumption that the same words used twice in the same act have the same
meaning,"38 the legislature appears not to have distinguished compensation orders from
other decisions in the legislation establishing the Commission. Alaska Statute 23.30.127,
which sets out deadlines for appeals and cross-appeals to the Commission, uses the term
"compensation order" when referring to the time for filing an appeal39 and "decision"
when referring to the time for filing a cross-appeal.40
In addition, without authority to stay Board decisions while review is
pending, the Commission's discretionary review jurisdiction would be meaningless. If
the Commission could not stay a Board order while it reviewed the order, issues could
become moot while review was pending.
V. CONCLUSION
Because discretionary review of non-final Board orders is necessarily
incident to the Commission's express power to hear appeals from final Board decisions,
we AFFIRM the Commission's decision that it had jurisdiction to stay and review the
Board's venue decision in this case.
37 AS 23.30.125(c).
38 Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121, 1123 (Alaska 1995)
(quoting Kulawik v. ERA Jet Alaska, 820 P.2d 627, 634 (Alaska 1991)).
39 AS 23.30.127(a).
40 AS 23.30.127(c).
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