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Dafermo v. Municipality of Anchorage (6/20/97), 941 P 2d 114
Notice: This opinion is subject to formal 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.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL DAFERMO, )
) Supreme Court No. S-6864/7003
Appellant and )
Cross-Appellee, ) Superior Court No.
) 3AN-94-3448 CI
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
) [No. 4836 - June 20, 1997]
Appellee and )
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Joan M. Woodward, Judge.
Appearances: Joseph A. Kalamarides,
Kalamarides & Associates, Anchorage, for Appellant and Cross-
Appellee. Laurence Keyes, Russell, Tesche & Wagg, Anchorage, for
Appellee and Cross-Appellant.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
Michael Dafermo filed a workers' compensation claim for
vision problems caused by his computer work. The Board found his
claim to be untimely and the superior court affirmed. We reverse.
II. FACTS AND PROCEEDINGS
Michael Dafermo worked for the Municipality of Anchorage
(MOA) from February 1985 to May 1986 as a computer technical
operator. He began to experience eye pain, blurred vision, and
eye-focusing difficulties while working for MOA. He spoke with two
of his supervisors, Al Korz and Keith Stout, about these problems.
Korz recommended that Dafermo see Dr. Jon Shiesl, an eye physician,
while Stout simply told Dafermo that the eye condition "sounds like
a personal problem."
Dafermo quit his job with MOA in May 1986. The Alaska
Workers' Compensation Board (Board) found that "one of the main
reasons"for his leaving this employment was "his inability to
resolve his visual difficulties,"difficulties that Dafermo felt
restricted his ability to work with computers.
Dafermo accepted Korz's recommendation and began seeing
Dr. Shiesl about a year before he quit working for MOA. Dr. Shiesl
prescribed special glasses in an attempt to resolve Dafermo's eye
problems, but the glasses did not resolve the problems. Dafermo
then left the state for several years. According to his testimony,
his eye problems grew worse during that period. He returned to
Alaska in 1988 and again saw Dr. Shiesl, and other physicians.
Dafermo asserts that none of the doctors could diagnose the nature
of his eye condition or identify its work-relatedness.
Dr. Janet Steinberg examined Dafermo in April 1991. She
referred him to Dr. Thomas Bosley. Dafermo contends that he was
not aware of the nature of his disability or its work relatedness
until he received a letter from Dr. Steinberg, dated September 3,
1991, which included a copy of Dr. Bosley's impression and
diagnosis. Dr. Bosley did not specifically connect Dafermo's eye
problems to his employment with MOA. However, he did suggest that
Dafermo's work with computers might be a factor in his problems.
He diagnosed a neurological dysfunction that corresponded with
Dafermo's difficulty with visual and language functions, and
observed that "[i]t seems most likely that [Dafermo] has become
symptomatic in the relatively recent past because of the additional
stress that he has put on his language system . . . by taking a job
as a computer programmer." In 1993 Dr. James Sheedy examined
Dafermo, and more clearly and definitively diagnosed a link between
Dafermo's eye problems and his work in front of a computer screen.
Dafermo filed a notice of injury on November 1, 1991, and
an application for adjustment of claim on November 11. MOA
controverted Dafermo's claim. The Board found that Dafermo's claim
was barred on both notice and claims period grounds.
First, the Board found that Dafermo failed to give notice
of his injury within thirty days, as required by AS 23.30.100(a).
[Fn. 1] The Board accepted Dafermo's contention that the delivery
of the Steinberg letter was "the first time he knew of a valid and
accurate diagnosis of his condition and its work-relatedness."
Based on this contention, the Board determined that the thirty-day
statute of limitations had been suspended until Dafermo received
this letter. However, the Board then found that Dafermo failed to
provide notice within thirty days after he received it.
The Board then considered whether Dafermo's failure to
provide notice was excusable under AS 23.30.100(d)(1). [Fn. 2] It
determined that Dafermo orally notified supervisors Korz and Stout
of his symptoms, but failed to provide any indication that he
believed his problems were work-related. The Board found that MOA
"had no way of knowing the employee's symptoms were work-related
because the employee did not report them as such." The Board then
determined that "the employee's failure to report his symptoms as
potentially related to his computer work prejudiced the employer's
ability to conduct an investigation into the matter." Because of
this prejudice to MOA, the Board found the AS 23.30.100(d)(1)
exception to the notice requirement inapplicable to the claim
The Board also found that Dafermo did not bring the claim
in a timely manner, pursuant to AS 23.30.105(a). [Fn. 3] First,
the Board determined that Dafermo did not sustain a latent injury
that would postpone the running of the two-year claims period until
the date he received the Bosley diagnosis through the Steinberg
letter. The Board found that "in the exercise of reasonable
diligence, the employee could have come to know the nature of his
disability and its relation to his employment long before the
diagnoses by Dr. Bosley and Dr. Sheedy." Because Dafermo
"reasonably could have, but did not recognize the nature and
seriousness of his problem or relate the problems to work prior to
the examinations by these doctors,"the Board determined that the
period for bringing the claim had begun to run earlier, and had
Board Chairman M.R. Torgerson dissented from the Board's
decision on both the notice and claims period issues. As to the
notice issue, he focused on supervisor Stout's conclusion that the
problems Dafermo described "were personal rather than work-
related,"and Stout's refusal to "take reasonable action to
investigate the work-relatedness of them." Chairman Torgerson
would have found that "Stout's failure to follow through with the
employee's complaints negates . . . any prejudice the employer
might suffer because of the late filing of notice." As to the
claims period issue, Torgerson would have found that Dafermo had
sustained a latent injury, the probable compensable character of
which he could not have recognized until he received Dr. Bosley's
diagnosis. Because Dafermo filed the claim within two years of
this diagnosis, Chairman Torgerson would hold it timely. Because
of his conclusions regarding the notice and claims period issues,
Torgerson would not have barred Dafermo's compensation claim.
Dafermo appealed the Board's decision to the superior
court, which affirmed the decision of the Board based on the
Board's resolution of the notice issue. It determined, however,
that the Board's finding that the two-year claims period had run
was not supported by substantial evidence and was unreasonable and
arbitrary in light of the Board's finding that the running of the
thirty-day notice period had been suspended until Dafermo received
the Steinberg letter.
Dafermo appeals the Board's decision on the notice issue.
MOA cross-appeals, claiming that the superior court should have
affirmed the Board's finding that Dafermo's claim was not timely
A. Standard of Review
All three of the issues on appeal concern the validity of
findings made by the Board. This court reviews the Board's
findings under the substantial evidence standard, and will not
vacate findings of the Board that are supported by such evidence.
Alaska State Housing Auth. v. Sullivan, 518 P.2d 759, 760 (Alaska
1974). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978).
However, the question of whether the quantum of evidence is itself
substantial is a legal question, which this court determines
through an independent review of the evidence. Fireman's Fund
American Ins. Cos. v. Gomes, 544 P.2d 1013, 1015 (Alaska 1976).
B. The Board's Finding that Dafermo Failed to Provide Notice
Within Thirty Days of His Receiving the Steinberg Letter Was
Supported by Substantial Evidence.
Dr. Steinberg's letter was dated September 3, 1991.
Dafermo provided notice on November 1. While there was no evidence
presented as to when he received the letter, Dafermo does
acknowledge that he received the letter in fact. If he received
the letter before October 2, Dafermo's notice would not be timely;
if he received it on or after October 2, notice would be timely.
Despite the absence of any evidence as to when Dafermo
actually received the letter, the fact that the letter was dated
September 3 is evidence a reasonable mind might accept as adequate
to support the conclusion that Dafermo did in fact receive it
before October 2. As a medical professional, it is unlikely that
Dr. Steinberg would draft a letter of such importance to a client,
only to delay sending it off for the better part of a month.
Likewise, while postal delays happen, it seems unlikely that such
a delay would prevent Dafermo from receiving this information for
so long. Because a reasonable person might accept the letter's
date as adequate to support the conclusion that Dafermo received
the letter before October 2, the Board's conclusion that Dafermo
gave notice only after the thirty-day notice period had expired was
supported by substantial evidence.
C. The Board's Finding of Prejudice to the Employer Was Not
Supported by Substantial Evidence.
The Board's finding of prejudice was the basis for its
conclusion that the AS 23.30.100(d)(1) exception to the notice
requirement was not applicable. Alaska Statute 23.30.100(d)(1)
creates an exception to the notice requirement when two conditions
are met: (1) "the employer, an agent of the employer in charge of
the business in the place where the injury occurred, or the carrier
had knowledge of the injury or death,"and (2) "the board
determines that the employer or carrier has not been prejudiced by
failure to give notice . . . ." The Board found that the first of
these two conditions had been met, since Korz and Stout were MOA's
agents under AS 23.30.100(d)(1), and Dafermo notified them of his
symptoms. However, the Board also found that Dafermo's failure to
provide notice to MOA was prejudicial, because Dafermo failed to
provide Korz and Stout with any indication that his eye problems
might be work-related, thereby leaving MOA with no way of knowing
of this potential work-relatedness.
Dafermo adopts the reasoning of Chairman Torgerson's
dissent in arguing for the exception. He argues that Stout "failed
to take reasonable action to investigate the work-relatedness"of
the eye problems he mentioned, and that this "failure to follow
through with Dafermo's complaints negates any prejudice the MOA
might suffer because of the late filing of notice." The superior
court, in affirming the Board's finding of prejudice, observed that
"employees may report all kinds of physical or emotional conditions
to supervisors,"and "[s]upervisors should not be required to
assume that a condition might be work-related, when the employee
does not so indicate."
The flaw in the Board's reasoning is more fundamental
than Chairman Torgerson's dissent would suggest, so we need not
address the extent of an agent's responsibility to make inquiry
regarding the work-relatedness of an employee's complaints. [Fn. 4]
Alaska Statute 23.30.100(d)(1) states that the exception it creates
to the notice requirement will apply only if "the employer or
carrier has not been prejudiced by failure to give notice"
(emphasis added). Any prejudice to MOA that was not caused by
Dafermo's failure to give notice is not prejudice that renders the
exception to the notice requirement inapplicable. The Board found
that Dafermo was not required to provide notice until after he
received the Steinberg letter. Thus, Dafermo's "failure to give
notice"did not occur until thirty days had passed from his
receiving this letter. Any prejudice to MOA resulting from his
failure to give notice would have had to occur in the short
interval between the date in October 1991 when the thirty-day
notice period expired and November 1, 1991, the date on which he
gave notice in fact. Any prejudice stemming from events during
1985 or 1986, the time Dafermo failed to indicate to Korz and Stout
that he suspected his eye problems might be work-related, is
irrelevant. Whatever prejudice that may have occurred then was not
caused by Dafermo's failure to provide notice in October 1991.
Timely written notice of an injury is required because it
lets the employer provide immediate medical diagnosis and treatment
to minimize the seriousness of the injury, and because it
facilitates the earliest possible investigation of the facts
surrounding the injury. State v. Moore, 706 P.2d 311, 312 (Alaska
1985); Sullivan, 518 P.2d at 761; Morrison-Knudsen Co. v. Vereen,
414 P.2d 536, 537 (Alaska 1966). A failure to provide timely
notice that impedes either of these two objectives prejudices the
No substantial evidence could support a finding that
Dafermo's failure to give notice in October 1991 prejudiced MOA's
interests in either early investigation or prompt medical diagnosis
and treatment. Years had passed since Dafermo first began having
eye problems. Any prejudice that resulted from MOA's inability to
promptly investigate Dafermo's claim and provide early diagnosis
and treatment had long since been sustained by the time of
Dafermo's failure to provide notice. Furthermore, after all these
years, there is no evidence that a delay of a few additional days
or weeks during October 1991 would have had any significant impact
on MOA's ability to investigate, secure a diagnosis, or provide
The Board erred by using 1985 and 1986, the years of
Dafermo's employment and his conversations with Korz and Stout, as
the benchmark for determining whether MOA had been prejudiced by a
failure to provide notice in October 1991. We reverse the Board's
finding of prejudice because events in 1985 and 1986 cannot provide
substantial evidence to support such a finding. Because of this,
and because Dafermo's 1986 conversations with Korz and Stout gave
"agent[s] of the employer in charge of the business in the place
where the injury occurred . . . knowledge of the injury,"both the
"knowledge"and "lack of prejudice"prongs of the
AS 23.30.100(d)(1) exception to the notice requirement were
satisfied. As a result, Dafermo's failure to provide notice within
thirty days of his receipt of the Steinberg letter should have been
D. The Board's Finding that Dafermo's Claim Was Not Timely
Was Not Supported by Substantial Evidence.
We agree with Chairman Torgerson's conclusion that
Dafermo's eye problems were a latent injury, and affirm the
superior court's reversal of the Board on the claims period issue.
In determining that the thirty-day notice period began to run upon
Dafermo's receiving the Steinberg letter, the Board adopted
Dafermo's contention that he received his first accurate medical
diagnosis of his condition and its work-relatedness at that time.
Once the Board adopted this contention, no evidence was introduced
that could have supported a conclusion that the injury was not
latent. The Board had already made findings that would compel the
conclusion that Dafermo's injury was a latent defect.
"[A]n injury is latent so long as the claimant does not
know, and in the exercise of reasonable diligence (taking into
account his education, intelligence, and experience) would not have
come to know, the nature of his disability and its relation to his
employment." W.R. Grasle Co. v. Alaska Workmen's Comp. Bd., 517
P.2d 999, 1002 (Alaska 1974) (footnotes omitted). The Board
determined that Dafermo is "an intelligent individual, with
considerable computer experience and achievement in college
classes,"and therefore concluded that "taking into account the
employee's education and intelligence, . . . in the exercise of
reasonable diligence, the employee could have come to know the
nature of his disability and its relation to his employment long
before the diagnoses by Dr. Bosley and Dr. Sheedy."
This conclusion fails to give adequate consideration to
the fact that this court has "held that a layman 'should not be
expected to diagnose a condition which physicians whom he had
consulted . . . failed to diagnose.'" Id. at 1004 (quoting
Employers' Liab. Assurance Co. v. Bradshaw, 417 P.2d 600, 601
(Alaska 1966)). The Board calculated the thirty-day notice period
based upon its finding that Dafermo's prior medical examinations
had failed to give him an accurate diagnosis of his condition and
its work-relatedness. Once the Board made this finding, evidence
regarding Dafermo's intelligence or education does not support the
conclusion that the claims period began to run prior to an accurate
diagnosis. The superior court correctly determined that the Board
erred in this regard.
"[I]n 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." AS 23.30.105(a). "It appears clear . . . that
by 'defect' the legislature intended 'injury.'" Grasle, 517 P.2d
at 1002. For claims based on a latent injury, the two-year statute
of limitations is suspended during the full period of latency.
However, such claims "must be filed within two years of actual or
chargeable knowledge of the nature of the disability and its
relation to employment." Id. at 1003. Because Dafermo's injury
was latent, the claims period began to run only after Dafermo
received the Steinberg letter. His November 11 Application for
Adjustment of Claim fell well within this two-year limitations
We REVERSE the superior court's affirmance of the Board
on the notice issue, but AFFIRM its determination that the Board
erred in rejecting Dafermo's claim as untimely filed. We REMAND
Dafermo's claim to the Board for a determination on its merits,
since this claim was not barred by either AS 23.30.100 or
AS 23.30.100 provides:
(a) Notice of an injury or death in
respect to which compensation is payable under this chapter shall
be given within 30 days after the date of such injury or death to
the board and to the employer.
AS 23.30.100 provides:
(d) Failure to give notice does not bar a
claim under this chapter
(1) if the employer, an agent of the
employer in charge of the business in the place where the injury
occurred, or the carrier had knowledge of the injury or death and
the board determines that the employer or carrier has not been
prejudiced by failure to give notice . . . .
AS 23.30.105 provides:
(a) 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. . . . 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
We have recently held that knowledge of work-relatedness of
the injury is not required. Kolkman v. Greens Creek Mining Co., __
P.2d __, Op. No. 4808, p. 13 (Alaska, April 18, 1997) ("[T]o the
extent that State v. Moore [706 P.2d 311 (Alaska 1985)] may be read
to have accepted the additional requirement of the employer's
knowledge of the work-relatedness of the injury in determining
whether the exception of AS 23.30.100(d)(1) applies, we disapprove