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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Eder v. M-K Rivers (10/21/2016) sp-7130
Notice: This opinion is subject to correction before publication in the P ACIFIC 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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
HARVEY MARK EDER, )
) Supreme Court No. S-15871
Appellant, )
) Alaska Workers' Compensation
v. ) Appeals Commission No. 14-017
)
M-K RIVERS and )
O P I N I O N
WESTCHESTER FIRE INSURANCE )
)
CO. No. 7130 - October 21, 2016
)
Appellees. )
_______________________________ )
Appeal from the Alaska Workers' Compensation Appeals
Commission.
Appearances: Harvey Mark Eder, pro se, Santa Monica,
California, Appellant. Randall J. Weddle and Troy D.
Bittner, Holmes Weddle & Barcott, P.C., Anchorage, for
Appellees.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
Bolger, Justices.
STOWERS, Chief Justice.
I. INTRODUCTION
In 2012 a worker whose Alaska workers' compensation case was closed in
1977 filed a new claim related to his injury from the 1970s. The Alaska Workers'
Compensation Board dismissed the new claim, and he appealed to the Alaska Workers'
Compensation Appeals Commission. The Commission granted the worker three
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extensions of time to file his brief and later issued an order to show cause why the appeal
should not be dismissed. The Commission dismissed the appeal, relying on its
interpretation of a Board regulation. We reverse the Commission's decision.
II. FACTS AND PROCEEDINGS
Harvey Eder worked for MK-Rivers on a construction project related to the
Alaska pipeline. He injured his neck at work in July 1975 and received temporary total
disability (TTD) for the injury. In a 1977 decision the Alaska Workers' Compensation
Board denied further TTD because it thought Eder was "exaggerating his problems for
secondary gain (additional compensation)."
Eder moved back to California and at one point worked for a locksmith.
He was injured in a work-related car accident in the early 1980s while working for that
business and received California workers' compensation benefits for those injuries.
Doctors in California attributed a percentage of Eder's disability to the initial Alaska
injury.
Eder filed a pro se written claim for permanent total disability (PTD) in
Alaska in 1986; the record reflects that he was raising a claim for a "latent defect" at that
time. Shortly after Eder filed the claim an attorney entered an appearance on his behalf.
Nothing in the record indicates the Board held a hearing on the 1986 claim, and at the
2014 hearing M-K Rivers's attorney said, "That [1986 claim] disappeared. It just went
away." The record contains several depositions taken in the Alaska case from the 1980s
as well as a "Statement of Readiness to Proceed" filed on Eder's behalf. In the Board's
2014 decision, the Board did not discuss the 1986 written claim, saying only that Eder
"sought assistance from [an] . . . attorney . . . in 1986 to explore reopening his claim";
the Board noted Eder's testimony that his attorney had died and because of his death "the
claim was not pursued."
Eder began to experience mental health problems at some point in the
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1980s. His psychiatric diagnoses included paranoid schizophrenia, polysubstance abuse
disorder, dysthymic disorder with anxiety, and "somatic delusion." His treating
psychiatrist in California attributed his mental decompensation to the work-related car
accident, and the judge in the California workers' compensation case apportioned about
60% of Eder's mental disability to that accident.
In 2012, for reasons that are not readily apparent from the record, Eder
sought to reopen his Alaska workers' compensation case, again requesting PTD. At a
prehearing conference his claim was amended to include permanent partial impairment,
medical and transportation benefits, reemployment benefits, and penalties and interest.
M-K Rivers filed an answer and several controversion notices. It then filed a petition to
dismiss the claimbased on res judicata grounds, arguing that the claims Eder was making
in 2012 had been decided in the 1977 decision.
After a hearing the Board dismissed Eder's 2012 claim on res judicata
grounds, rejecting Eder's "implicit" theory that the time for appeal of the 1977 decision
should have been tolled because he was mentally incompetent throughout this time
period. Noting that Eder had contacted an Alaska attorney in 1986, the Board thought
Eder's California workers' compensation case contained ample evidence that he was at
least competent enough to cooperate with attorneys to secure benefits.
Eder appealed to theAlaskaWorkers'CompensationAppealsCommission.
He requested and was granted a waiver of fees and transcription costs. He then asked
for a series of extensions of time in which to file his opening brief. The first motion is
fairly legible; in it Eder asked for a ten-day extension so that he could copy an additional
1 He also asked that
2,004 pages from the Board record and "look for missing evidence."
1 He did not explain what evidence might be missing.
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his employer pay for his travel expenses because he was homeless. 2 The Commission
granted a ten-day extension of time.
The Commission clerk wrote a memo to the file in October 2014, recording
a series of phone calls from Eder and her investigation of the questions he raised. Eder
indicated he had two "CDs that contained 7,200 pages of the record" but he was "trying
to figure out what the other 2,300 pages in the record [were]." The Commission clerk
called the Board; according to her memo, the CD contained the Board record as of
February 2014, when Eder had requested a copy of the record; because Eder had not
made another request for a copy, the Board had not supplied him with a copy of the rest
of the file. A later note in the record shows that the Board did not have the last 2,300
pages of the record on a CD. 3
Eder filed two additional requests for extensions of time to file his brief in
the Commission, both of which appear to be copies of the initial request with additional
writing on them. The second motion informed the Commission that Eder was still
homeless and asked for up to 90 days to file his brief. The third request contained
additional writing that is largely illegible. The Commission granted both requests, but
2 A memo to the file from the Commission's clerk indicates that Eder called
and reported that he had spoken with the insurer's attorney, who agreed to a 30-day
extension of time but would not agree to pay for Eder to come to Alaska to review the
record.
3 There may have been some miscommunication about the CD. A Board
employee wrote Eder in February 2014 to tell him that the Board had scanned his 7,358
pages of "medical records" into the Board's "ICERS database." The Board evidently
sent copies of a CD containing the records to Eder and M-K Rivers and told Eder the
records had not yet been admitted into evidence. A California attorney had also sent
copies of documents from the California case to M-K Rivers's attorney, who copied the
documents, numbered them, and returned them. There was evidently some question
whether the documents Eder sent to the Board were the same documents the attorney had
sent to M-K Rivers.
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it indicated that the third one would be the last. On the same day that Eder asked for the
third extension of time, he filed copies of the Commission's pro se briefing forms with
what appear to be handwritten notes on them as well as Board forms related to medical
records. Much of the writing is indecipherable, but some of it appears to refer to Eder's
case. For example, underneath "why didn't I appeal" is written "severe depression"; the
document also refers to transcripts and a "missing record of tape" from 1976.
In the December 23, 2014 order granting the third extension, the
4 and notified Eder that if he failed to "file his
Commission cited one of its regulations
opening brief and excerpt of record on or before Friday, January 16, 2015, his appeal
may be dismissed for failure to prosecute." Eder filed a petition for review of the
Commission's third order with this court.
In January Eder filed two motions with the Commission: a fourth motion
for extension of time and a motion to stay the proceedings while the petition for review
was pending. The Commission denied the request for extension of time, noting that it
had previously granted several extensions of time, for a total of 80 days. It decided it
would only stay the proceedings if this court granted review. We denied review on
February 3, 2015.
On January 29 the Commission issued an Order to Show Good Cause,
4 8 Alaska Administrative Code (AAC) 57.250(a) (2011) provides:
If an appellant fails to comply with AS 23.30.125 -
23.30.128, fails to comply with this chapter, fails to pay the
cost of preparing the transcript, as provided in
8 AAC 57.120(j), or fails to comply with an order of the chair
or commission, the chair will issue written notice to the
appellant that specifies the nature of the failure and states that
the appeal may be dismissed for failure to prosecute if the
appellant fails to take appropriate corrective action no later
than 20 days after receipt of the notice.
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giving Eder about two weeks to show cause why his appeal should not be dismissed for
failure to prosecute. Eder responded, saying that (1) he did not have "the missing
evidence [his] file added"; (2) he was homeless; and (3) he was heavily in debt, which
made his compensable disability greater. He argued that the balance of hardships
"cite[d]" that the "information (as stated in [his] recent motion) should be provided to
[him]" and "incorporat[ed] all of [his] record in this case by reference that support[ed
his] position."
The Commission dismissed the appeal. Calling Eder's personal
circumstances "unfortunate,"theCommission decided therewas"noapplicable'balance
of hardships' law requiring the commission to provide [Eder] with the requested
documents/evidence." Instead, the Commission cited a Board regulation and said that
regulation "precludes the workers' compensation division, which includes the
commission, from providing documents/evidence at no charge to [Eder]."
5 Concerned that some of Eder's briefing
Eder appealed the dismissal.
suggested he wanted this court to review the substance of the Board's decision,
M-K Rivers moved to limit the appeal to the question whether the Commission abused
its discretion in dismissing the appeal, arguing that the Commission had yet to review the
merits of the Board's decision. We granted M-K Rivers's motion.6 The sole issue before
us is thus whether the Commission's dismissal decision was correct.
III. STANDARD OF REVIEW
In an appeal from the Alaska Workers' Compensation Appeals
5 As part of Eder's motion to waive fees he asked for a copy of the record;
the appellate clerk's office sent him a CD with a scanned copy of the record.
6 Eder also moved for a stay of the present appeal pending Board action on
another claim. We denied the stay.
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7
Commission, "we review the Commission's decision rather than the Board's." We
apply our independent judgment to questions of law that do not involve agency
expertise.8
Our review of an agency's interpretation of its own regulation is reviewed
under the reasonable basis standard, but "we independently review whether a regulation
9
applies to a case." Review of an agency's application of its own regulations to the facts
of a case "is limited to whether the agency's decision was arbitrary, unreasonable, or an
10
abuse of discretion."
We will find an abuse of discretion when the agency action is
11
"arbitrary, capricious,manifestly unreasonable, or . . . stems froman improper motive."
IV. DISCUSSION
A. The Commission Abused Its Discretion In Dismissing Eder's Appeal.
1. 8 AAC 45.030
Ultimately this appeal is about access to the appellate record for pro se
litigants in workers' compensation cases. Even though Eder's pleadings are difficult to
read at times, the record is clear that he sought a complete copy of the Board record
12
before he filed his brief with the Commission. Accessing the record can be an
7 Humphrey v. Lowe's Home Improvement Warehouse, Inc. , 337 P.3d 1174,
1178 (Alaska 2014).
8 Monzulla v. Voorhees Concrete Cutting, 254 P.3d 341, 343 (Alaska 2011).
9 Garner v. State, Dep't of Health & Soc. Servs., Div. of Med. Assistance,
63 P.3d 264, 268 (Alaska 2003).
10 Griffiths v. Andy's Body & Frame, Inc., 165 P.3d 619, 623 (Alaska 2007)
(quoting Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960 (Alaska 1998)).
11 Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1297 (Alaska 1985) (quoting
Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)).
12 He makes clear in his opening brief before us that he wants "a complete
hard copy" of the record.
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important part of presenting an appeal, and it is not clear whether or when the
Commission waives for self-represented litigants its requirement that an excerpt of
record be filed. 13
In reaching its decision here the Commission applied its own regulations
about dismissal of appeals, but it also relied on one of the Board's regulations. The
Commission cited 8 AAC 45.030, a Board regulation, reasoning that this regulation
"precludes the workers' compensation division, which includes the commission, from
providing documents/evidence at no charge to the appellant." The Commission did not
identify which subsection of the regulation it was interpreting.
Eder argues that he was unable to get a complete copy of the record and
that, without a copy of the record, he "can't file an [excerpt] of the record." Eder
disagrees with the Commission's interpretation of the Board's regulation; he says the
Commission "lies when they say that they are required by state [l]aw not to get [him] a
copy of [the] 'whole record' [so he] . . . could write [his] opening brief" because the
regulation says "may" rather than "shall." Eder also appears to argue that he submitted
"a very casual" rough draft of a brief to the Commission and complains that the
14
Commission denied him more time to complete the briefing.
M-K Rivers argues that the Commission's decision should be upheld under
the abuse of discretion standard because the Commission properly applied applicable
statutes and regulations. It also argues that Eder did not show good cause to the
Commission because Eder's "Show of Good Cause contained no basis upon which good
13 8AAC57.170providesthat"[p]arties shall prepareexcerpts ofrecord"that
are due at the same time as their briefs. 8 AAC 57.180 lists certain documents that
"must" be in the excerpt of record.
14 We assume this assertion is related to the documents Eder filed with his
third motion for extension of time.
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cause could be found." M-K Rivers also cites a Board regulation, 8 AAC 45.030(c),
requiring an appellant to pay the cost of preparing the record on appeal as a basis to
justify the Commission's decision. It argues that Eder was not adequately diligent in
pursuing the appeal, that the Commission provided him adequate time to file a brief, and
that continued delay would frustrate the purpose of providing "a 'prompt, fair, and just
disposition' of the appeal."
We disagree with M-K Rivers's contention that the Commission properly
applied the applicable regulations. Even assuming that the Board's regulation applies
to the Commission,15 the regulation does not prohibit the Division of Workers'
Compensation from waiving copying fees for indigent parties. The first subsection of
the regulation provides: "The division will charge no fees for any act done by it except
(1) reasonable duplication fees may be charged for copying board files, papers,
documents, orders, or decisions . . . ."16
The regulation then permits the division, "for
reasons of administrative convenience," to "refuse to duplicate or copy material for a
person, provided the material sought is available for copying at a division office during
15 By its terms, 8 AAC 45.030 applies to the "division," which is defined as
"the division of workers' compensation within the administrative branch of the
Department of Labor and Workforce Development." 8 AAC 45.900(a)(8).
8 AAC 45.030 was most recently amended in 1983, see Alaska Administrative Code,
Register 86 (July 1983), long before the Commission's creation, see ch. 10, § 8, FSSLA
2005, and is in a part of the Alaska Administrative Code entitled "Compensation,
Medical Benefits, and Proceedings Before the Alaska Workers' Compensation Board."
See 8 AAC pt. 3, ch. 45 (2011). Alaska Statute 23.30.008(c) allows the Commission to
promulgate "regulations implementing the commission's authority and duties under [the
Alaska Workers' Compensation Act], including rules of procedure . . . for proceedings
before the commission." The Commission has promulgated regulations setting out
procedural rules in appeals to it, see, e.g. , 8 AAC 57.090, so it is not clear why the
Commission considered itself bound by 8 AAC 45.030 here.
16 8 AAC 45.030(a). 8 AAC 45.030(a)(2) permits the division to charge for
duplicating tapes.
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17
normal business hours." And 8 AAC 45.030(c), the regulatory subsection M-K Rivers
cites in its brief, requires an appellant to "pay the cost of preparing the record on appeal"
and provides that "[t]he division will not certify the administrative record until all costs
of record preparation have been paid."
Although M-K Rivers relies on the part of the regulation about preparing
the record on appeal, we see no indication that there was any difficulty in preparation of
the record for appeal. The Board supplied the record to the Commission promptly - the
Board's record was filed less than a month after Eder's notice of appeal - and nothing
in the record suggests either that Eder was required to pay for preparation of the record
or that his failure to pay for preparation was in any way connected to the dismissal. And
if 8 AAC 45.030(c) was the basis for the Commission's refusal to provide Eder with a
copy of the record, the Commission's determination that it was bound by the provision
related to payment for copying would be inconsistent with its treatment of transcription
fees. 8 AAC 45.030(c) requires the party requesting a transcript to pay the transcription
18 and the
fee, but the Commission's regulation permits it to waive transcription fees,
Commission in fact waived the fee here. Assuming any part of 8 AAC 45.030 can be
read as prohibiting provision of free copies to an indigent litigant, we fail to see why the
Commission would feel bound by that part of the regulation when it considered itself
able to override the same regulation with respect to transcription fees.
The remainder of the regulation permits the division to charge for copying
and to refuse to make the copies itself as long as it makes the record available for
17 8 AAC 45.030(b).
18 8 AAC 57.090(c)(2).
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19
copying at a division office. Nothing in the regulatory language prohibits the division
from waiving copying costs, and the Board's action here in providing Eder with a CD
containing part of the record suggests that the division has not interpreted the regulation
as the Commission did. Furthermore, we note that the Commission itself made a copy
20 We thus conclude
of the record at no charge to an indigent litigant in an earlier case.
that the regulation does not forbid the Commission from waiving copying costs for an
indigent litigant,21
and we note we have previously found a denial of due process when
an agency dismissed an administrative appeal after failing to provide access to the
administrative record.22
2. The Commission did not make adequate findings to permit
review of a finding of good cause.
M-KRivers also argues that theCommissionproperly appliedits regulation
about dismissal for failure to prosecute an appeal and that dismissal was justified because
Eder failed to show good cause why his appeal should not be dismissed. M-K Rivers
19 8 AAC 45.030(a)-(b).
20 Khan v. Adams & Assocs. , AWCAC Dec. No. 057 at 4 (Sept. 27, 2007).
21 As we noted above, this court provided Eder with a scanned copy of the
record. In his brief before us, he indicates that he wants a hard copy of the record rather
than an electronic one. He does not explain why he needs a hard copy of the entire
record, and we see no need to provide him with one in light of the large number of pages
in it that are duplicate records from his California case.
22 Copeland v. Ballard, 210 P.3d 1197, 1204-06 (Alaska 2009) (observing
that litigants "have a strong interest in accessing the record" because "it is the platform
upon which they must build their case"); see also Bustamante v. Alaska Workers' Comp.
Bd., 59 P.3d 270, 273 (Alaska 2002) (reversing superior court's decision not to waive
transcription fees for indigent litigant); Baker v. Univ. of Alaska, 22 P.3d 440, 442-43
(Alaska 2001) (reaffirming principle "that 'the size of a party's bank account' should not
'foreclose [that] party's opportunity to be heard' " (citation omitted) (quoting Peter v.
Progressive Corp., 986 P.2d 865, 872 (Alaska 1999) (alteration in original)).
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lists the following factors the Commission has considered in other cases about good
cause to dismiss an appeal: "whether appellant's non-compliance was due to
circumstances beyond his control, whether appellant was somehow prevented from
complying, and whether appellant made a good-faith effort to comply." Acknowledging
that Eder "cited his homelessness and financial difficulties" in his response to the
Commission's Order to Show Good Cause, M-K Rivers nonetheless contends that Eder
made no good faith effort to comply with the Commission's deadlines pointing to the
"significant series of delays" and the "haphazard nature of his filings."
Assuming the Commission adequately complied with its regulation about
23 the Commission's sole rationale for dismissing Eder's appeal was its
dismissal,
interpretation of 8 AAC 45.030 as prohibiting it (or the Board) "from providing
documents/evidence at no charge to the appellant." Aside from remarking about Eder's
"unfortunate" circumstances, the Commission made no findings about good cause. It
made no findings about whether Eder had made a good faith effort to comply with its
deadlines or whether Eder had not complied due to circumstances beyond his control.
Unlike the pro se litigant in Khan v. Adams & Associates, Eder timely filed a responsive
23 A Commission regulation sets out several necessary steps for the
Commission to take before it may dismiss an appeal for failure to prosecute.
8 AAC 57.250. "If an appellant fails to comply . . . with an order of the chair or
commission," the first step is issuance of "a written notice to the appellant that specifies
the nature of the failure and states that the appeal may be dismissed . . . if the appellant
fails to take appropriate corrective action no later than 20 days after receipt of the
notice." 8 AAC 57.250(a). Here, the Commission did not wait for Eder to fail to comply
with its order before it issued the written notice warning of possible dismissal - the
written notice was part of the order granting Eder's third request for an extension of time.
Eder could not have failed to comply with that order before the deadline in it, so it is
unclear whether the Commission complied with the first step of its regulation.
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24
pleading to the Commission's order to show good cause. His request for access to the
record was clear even if his other pleadings were not, and it was unlikely Eder's
circumstances would change while the appeal was pending so that he could pay for either
copies of the record or travel to Alaska. Additionally, the Commission clerk documented
a conversation with Eder that indicates he tried to obtain the remainder of the record
from the Board in December 2014. Because the Commission failed to make findings
related to good cause, we cannot "fill the gap" by making our own findings. 25
WeacknowledgethatEder'spleadingsaredifficult to decipher,particularly
when they are handwritten. Nonetheless the pleadings he supplied to the Commission
indicated that he wanted a copy of the record and was making an effort to comply with
Commission procedures. If the Commission doubted Eder's motivation in filing what
he did or thought it needed more evidence to make findings, it could have held a
hearing26 or suggested some alternative way for him to comply with the appeals process.
The Commission's rationale for failing to provide him with a copy was erroneous, and
it made no other findings about Eder's circumstances or lack of good faith.
V. CONCLUSION
We REVERSE the Commission's decision and REMAND for further
proceedings.
24 Khan, AWCAC Dec. No. 057 at 2-3.
25 See Bolieu v. Our Lady of Compassion Care Ctr. , 983 P.2d 1270, 1275
(Alaska 1999) (observing that a remand is needed when the Board fails to make a
necessary finding).
26 See Lawson v. State, Workers' Comp. Div., AWCAC Dec. No. 110 at 4-7
(May 29, 2009) (describing hearing to ascertain reasons for late filing).
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