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Jonathan v. Doyon Drilling, Inc. (3/3/95), 890 P 2d 1121
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) 264-0607, fax (907) 276-5808.
THE SUPREME COURT OF THE STATE OF ALASKA
KEITH JONATHAN, )
) Supreme Court No. S-5918
) Superior Court No.
v. ) 3AN-92-11174 CI
DOYON DRILLING, INC., J.V., ) O P I N I O N
and ALASKA NATIONAL INSURANCE )
Appellees. ) [No. 4173 - March 3, 1995]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Donald D. Hopwood,
Appearances: Debra Fitzgerald, Chancy
Croft, Chancy Croft Law Office, Anchorage,
for Appellant. Theresa Hennemann, Elizabeth
D. Goudreau, Faulkner, Banfield, Doogan &
Holmes, Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
I. FACTS AND PROCEEDINGS
Keith Jonathan was severely injured in the course of
his employment with Doyon Drilling, Inc. on February 12, 1988.
Doyon, through its insurer, Alaska National Insurance Company
(collectively Doyon), began paying him medical and disability
benefits. On July 3, 1989, Jonathan's vocational rehabilitation
counselor prepared a rehabilitation report for Doyon relating the
efforts made to find Jonathan employment.1 The report stated
that Jonathan expressed an unwillingness to look for work. On
August 9, 1989, Doyon filed a Notice of Controversion, contesting
the payment of rehabilitation benefits for "failure to
cooperate with vocational rehabilitation specialist." On
September 20, 1989, Jonathan's vocational counselor closed
Jonathan's file. The counselor stated that the file was being
closed based on instructions from Doyon's insurance adjustor.2
Jonathan filed an Application for Adjustment of Claim,
which he characterizes as his first written claim for benefits,
on September 27, 1990. Doyon answered on October 17, 1990, and
disputed Jonathan's claim for rehabilitation benefits. Jonathan
filed an Affidavit of Readiness for Hearing on April 10, 1991.
This was one year and 244 days after Doyon filed its Notice of
Controversion. The Workers' Compensation Board (Board)
originally scheduled the hearing for August 13, 1991, but later
continued the hearing on stipulation of the parties due to the
unavailability of one of Doyon's witnesses.
The hearing was rescheduled for October 22, 1991. On
October 21 a prehearing conference was held at which the parties
agreed to continue the hearing indefinitely because Jonathan's
attorney had not been able to contact Jonathan since September.
The prehearing summary states "Employee's Affidavit of Readiness
On June 16, 1992, Jonathan filed a second Affidavit of
Readiness for Hearing. This was 238 days after Jonathan's first
affidavit of readiness was cancelled. The total time between
Doyon's controversion and Jonathan's second affidavit in which
there was no operative affidavit of readiness was therefore two
years and 117 days.
Doyon petitioned the Board to dismiss Jonathan's claim
pursuant to former AS 23.30.110(c)3 which provided, in part: "If
a claim is controverted by the employer and the employee does not
request a hearing for a period of two years following the date of
controversion, the claim is denied." The Board denied the
petition. Although the Board found that more than two years had
passed, it concluded that Doyon had "waived"its controversion by
continuing to provide benefits and that dismissal would be
inequitable. Doyon appealed to the superior court.
The superior court reversed the Board and dismissed
Jonathan's claim for rehabilitation benefits. The court held
that more than two years passed between Doyon's controversion and
Jonathan's operative notice of readiness for a hearing, that the
Board's conclusion that Doyon had waived its controversion was
not supported by substantial evidence, and that therefore AS
23.30.110(c) required that the claim be dismissed.
On appeal, Jonathan argues that both his requests for a
hearing were within the two-year limit imposed by AS 23.30.110
because the time period did not begin until he filed a written
application for benefits with the Board, which was subsequently
controverted by Doyon.4 Under Jonathan's interpretation, Doyon's
August 9, 1989 Notice of Controversion did not trigger the
statute of limitations of section 110(c) because no written
"claim" had yet been filed; rather, Doyon's October 17, 1990
answer to Jonathan's application for benefits triggered section
110(c). In the alternative, Jonathan argues that the Board's
decision that Doyon waived its August 9, 1989 controversion is
supported by substantial evidence and should be affirmed. We
agree with the first argument and thus have no occasion to
address the second.
Jonathan's argument that he requested a hearing within
two years of the date of Doyon's claim controversion rests on his
interpretation of the word "claim"in AS 23.30.110(c). He argues
that "claim"means an injured employee's written application to
the Board for benefits.
The Workers' Compensation Act does not define the term
"claim."5 In the act, however, the word "claim"often refers to
a written application for benefits which is filed with the Board.
For example, AS 23.30.105, "Time for filing claims,"provides:
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 employee's disability and its
relation to the employment and after
disablement. However, the maximum time for
filing the claim . . . 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.
AS 23.30.105(a) (emphasis added). In addition to indicating that
a "claim" is a written pleading that is filed, this section
clearly differentiates between a claim and the employee's right
to compensation. Otherwise the provision tolling the period for
filing a claim while benefits are being paid makes no sense.
Similarly, AS 23.30.110 provides:
(a) Subject to the provisions of
AS 23.30.105, a claim for compensation may be
filed with the board in accordance with its
regulations at any time after the first seven
days of disability following an injury, or at
any time after death, and the board may hear
and determine all questions in respect to the
(b) Within 10 days after a claim
is filed the board, in accordance with its
regulations, shall notify the employer and
any other person, other than the claimant,
whom the board considers an interested party
that a claim has been filed. The notice may
be served personally upon the employer or
other person, or sent by registered mail.
(c) The board shall make the
investigation which it considers necessary
with respect to the claim, and upon
application of an interested party shall
provide an opportunity for a hearing on it.
If a hearing on a claim is ordered, the board
shall give the claimant and other interested
parties at least 10 days' notice . . . and
shall, within 30 days after the hearing
record closes, by order, reject the claim or
make an award in respect to it. . . . If a
claim is controverted by the employer and the
employee does not request a hearing for a
period of two years following the date of
controversion, the claim is denied.
Each of the first four uses of the word "claim"in section 110
clearly refer to a pleading that must be filed with the Board.
None of the other uses indicate that any different meaning is
intended. "There is a presumption that the same words used twice
in the same act have the same meaning." Kulawik v. ERA Jet
Alaska, 820 P.2d 627, 634 (Alaska 1991) (quoting 2A Norman J.
Singer, Sutherland Statutory Construction, 46.06, at 104 (4th
ed. 1984)); see also Benner v. Wichman, 874 P.2d 949, 957 (Alaska
Doyon counters that the other uses of "claim" in
sections 105 and 110 are not relevant to the meaning of the last
sentence of section 110(c). It argues that the key words in this
sentence are "controverted by the employer." Therefore, the
starting point of the two-year period for requesting a hearing
should be the employer's controversion, regardless of whether the
employee had filed a claim. Doyon relies on AS 23.30.155(a),
which addresses controversions:
Compensation under this chapter
shall be paid periodically, promptly, and
directly to the person entitled to it,
without an award, except where liability to
pay compensation is controverted by the
employer. To controvert a claim the employer
must file a notice . . . .
AS 23.30.155(a). Doyon argues that because section 155
authorizes a controversion prior to a written claim by the
employee, the written claim is not necessary to trigger the
running of the period for requesting a hearing. Doyon also
relies on Suh v. Pingo Corp., 736 P.2d 342 (Alaska 1987), in
which this court, in dicta describing the worker's compensation
system, recognized that the employer's controversion could
precede the employee's claim.
[I]f the employer controverts the
worker's claim for compensation, the worker
must file a claim (AS 23.30.105(a)) and
request a hearing before the Board. AS
23.30.110(c). Compensation does not begin
until the Board has held a hearing and issued
a compensation order. AS 23.30.155(a);
The statute of limitations
governing requests for hearings is critically
affected by the employer's choice of whether
or not to controvert the worker's right to
compensation. If the employer chooses to
controvert, the worker generally must file a
claim and request a hearing within two years
after gaining knowledge of his disability.
Id. at 346.
There is a distinction between the employee's right to
compensation (called "the worker's claim for compensation" in
Suh, id.) and the pleading which must be filed if benefits are
controverted (called "a claim"in Suh, id.). Because the same
word is used to describe both the right and the pleading in Suh
as well as in section 155(a), they raise rather than answer the
question of whether the use of the word claim in the last
sentence of section 110(c) was intended to mean the employee's
right to compensation or only the employee's written application
for benefits. Although both a written application and the
liability to pay compensation in the absence of an award may be
controverted, it does not necessarily follow that both types of
controversion will trigger the two-year time period for
requesting a hearing.
The more persuasive reading of the word "claim"is as a
written application for benefits filed with the Board. As
discussed above, this reading is consistent with the other uses
of the word claim in section 110(c).
This reading also best harmonizes the two-year
limitation period for requesting a hearing with the statute of
limitations in AS 23.30.105(a). Alaska Statute 23.30.105(a)
requires an employee to file a claim within two years of the last
payment made without an award. AS 23.30.105(a). Filing a claim
is a prerequisite to requesting a hearing. AS 23.30.110; 8 AAC
45.050(a). If AS 23.30.110(c) requires the employee to request a
hearing within two years of a controversion of the right to
compensation, then the limitations period of section 105 is
rendered essentially meaningless, because the employee would have
to file a claim and be ready for a hearing within two years.
Both limitations periods can be effective, however, if the
limitations period of section 110(c) is only triggered after the
employee files a claim. Then, AS 23.30.105(a) limits the time in
which the employee must file a claim, while 110(c) requires the
employee, once a claim has been filed and controverted by the
employer, to prosecute the employee's claim in a timely manner.
As section 110(c) requires an injured employee to
request a hearing within two years after he files a written
application for benefits which is denied by the employer,
Jonathan's second request for a hearing was timely. He filed his
application for adjustment of claim on September 27, 1990, which
Doyon answered on October 17, 1990. His second request for a
hearing was filed on June 16, 1992, well within two years of
Doyon's answer, especially when the six-month period between
Jonathan's first request for a hearing (April 10, 1991) and the
cancellation of this request (October 21, 1991) is subtracted.
The decision of the superior court is reversed and this
case is remanded to the superior court with directions to
reinstate Jonathan's claim for vocational rehabilitation
benefits. A controversion of the right to receive compensation,
in the absence of a written claim for compensation, is not
sufficient to start the two-year limitations period for
requesting a hearing. Alaska Statute 23.30.110(c) specifically
requires that the employee has two years from the date "a claim
is controverted by the employer" to request a hearing.
Therefore, until the employee files a claim, any controversion by
the employer does not begin this limitations period.
REVERSED and REMANDED.
1 The report was dictated on July 3, 1989, but was
not finalized and filed until July 17.
2 The file was apparently reopened on October 4,
1989, after Jonathan injured his left leg. The counselor helped
find Jonathan housing. On October 16, 1989, Doyon controverted
benefits from this most recent injury. The rehabilitation file
on Jonathan was subsequently placed on "hold"in accordance with
Doyon's insurance adjustor's request. Issues relating to the
October 16th controversion are not before the court.
3 This opinion's references to AS 23.30.110(c) refer to
former AS 23.30.110(c). AS 23.30.110(c) was amended by 20 ch.
79 SLA 1988. The amended section, effective July 1, 1988,
states, 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 contro
version notice, the claim is denied.
4 Doyon argues that Jonathan waived the argument
that he complied with AS 23.30.110(c) by not raising it before
the Board. Before the Board, Jonathan argued only that Doyon
negated the August 9th controversion by continuing to pay
benefits after it was issued and that Doyon failed to pursue the
specific remedies provided in AS 23.30.041(h) for controverting a
claim for rehabilitation benefits based on a failure to
cooperate. On appeal, Jonathan argues that his current argument
has not been waived as this court may consider any ground which,
as a matter of law, supports the results reached by the Board.
See Stordahl v. Government Employee Ins. Co., 564 P.2d 63, 67
n.16 (Alaska 1977); Ransom v. Haner, 362 P.2d 282, 285 (Alaska
1961). The superior court chose to review Jonathan's claim on its
merits and we do so as well, based on the above authorities.
5 But see 8 AAC 45.900(a)(5) ("'claim' includes any
matter over which the board has jurisdiction").