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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Collins v Arctic Builders, Inc. et al. (10/05/2001) sp-5481

Collins v Arctic Builders, Inc. et al. (10/05/2001) sp-5481

     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


WAYNE E. COLLINS,             )
                              )    Supreme Court No. S-9352
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-96-2559 CI
                              )
ARCTIC BUILDERS, INC., HOME   )    
INSURANCE CO., and ALASKA     )
WORKERS' COMPENSATION BOARD,  )    O P I N I O N
                              )
             Appellees.       )    [No. 5481 - October 5, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                   Michael L. Wolverton, Judge.


          Appearances: Wayne E. Collins, pro se,
Anchorage, Appellant.  Robert L. Griffin and Linda J. Hiemer, Law
Offices of Robert L. Griffin, Inc., Anchorage, for Appellees Arctic
Builders and Home Insurance Co.


          Before:   Matthews, Chief Justice, Eastaugh,
          Fabe, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.



I.   INTRODUCTION
          Wayne Collins was exposed to asbestos while working for
Arctic Builders in 1963.  This exposure had no immediate symptoms,
but more than twenty years later Collins developed chest pain and
shortness of breath.  His doctor diagnosed him with chronic
asbestos pleuritis, and Collins became aware of his condition on
November 3, 1990.  Collins claimed to have attempted to file for
workers' compensation benefits in 1991, before the two-year statute
of limitations had run.  The board expressly made no factual
determination concerning this attempt.  Because determination of
the date that Collins initially attempted to file his claim is
critical to application of the statute of limitations and may
convince the board to excuse Collins's lack of notice of injury, we
vacate the dismissal of Collins's claim and remand for these
factual determinations.
II.  FACTS AND PROCEEDINGS [Fn. 1]
          Wayne Collins suffers from health problems attributable
to asbestos exposure that occurred at a Clear Air Force Base
construction project while he was working for Arctic Builders in
1963.  Collins became aware of his condition no later than November
3, 1990, when he received the report of Dr. Buff B. Burtis.  
          Collins claims that he first attempted to file for
benefits in 1991.  Collins testified that he brought his
application to the state workers' compensation office, but the
clerk told him that he had to file with a federal agency because
his injury occurred on a military base.  Collins stated that he
argued with the clerk, telling the clerk that he was a civilian
contractor, and filed the application anyway.  Both parties agree
that there is no record of this attempted filing. 
          Collins appears to have also filed a claim with the
federal Office of Workers' Compensation Programs and later asked
Senator Frank H. Murkowski to check on the status of his claim. 
Senator Murkowski found that there was no record of Collins being
a civilian employee of the federal government, a prerequisite to
coverage under the Federal Employees' Compensation Act.  Because
Collins had been an employee of the private contractor Arctic
Builders, he was only eligible for benefits under the Alaska
Workers' Compensation Act.  Collins filed for benefits with the
Alaska Workers' Compensation Board on May 21, 1993. 
          The Alaska Workers' Compensation Board held a hearing for
Collins's adjustment of claim in January 1996.  In February the
board concluded that Collins's claim was time barred and dismissed
it.  The board determined that Collins had neither timely filed
notice of injury as required by AS 23.30.100(a) nor offered any
evidence supporting an exception to that requirement. 
          Collins appealed the board's decision to the superior
court.  The superior court concluded that Collins's appeal, in
addition to being untimely, "failed to comply with the appellate
rules."  Nonetheless, the superior court gave Collins fourteen days
to correct the deficiencies in his appeal documents. 
          Collins later filed all required pleadings in the
superior court, except a statement of points on appeal. [Fn. 2] 
Based on this failure, the superior court found that he had not
complied with the Alaska Appellate Rules and dismissed his case for
want of prosecution and untimeliness. 
          Collins appealed that dismissal to this court.  We
reversed the superior court's dismissal and reinstated Collins's
administrative appeal. [Fn. 3]  Since Collins was pro se, we held
that his attempted compliance with the Appellate Rules precluded a
summary dismissal of his appeal until the court gave him notice of,
and an opportunity to cure, the specific defects of his pleadings.
[Fn. 4]
          After remand to the superior court, the case was
reassigned to Superior Court Judge Michael L. Wolverton.  Judge
Wolverton affirmed the board's dismissal of Collins's claim, 
ruling that Collins had failed to file a timely notice of injury
according to AS 23.30.100(a) and that Collins was barred by AS
23.30.105(a)'s two-year statute of limitations. 
          Collins again appeals pro se.
III. STANDARD OF REVIEW
          When the superior court acts as an intermediate court of
appeal in an administrative matter, we independently review the
decision of the administrative agency. [Fn. 5]  We review findings
made by the Alaska Workers' Compensation Board "under the
substantial evidence standard, asking whether those findings are
supported by such relevant evidence as a reasonable mind might
accept to support a conclusion." [Fn. 6]  Finally, we review
questions of law using our independent judgment. [Fn. 7] 
IV.  DISCUSSION
          Collins argues that he is excused from filing his notice
of injury within thirty days after he knew of his latent asbestosis
by virtue of AS 23.30.100(a) and .105(a).  Arctic Builders responds
that Collins's notice of injury was untimely under subsection
.100(a) and that Collins's claim was barred by the statute of
limitations in subsection .105(a).  We address the statute of
limitations argument first.
          Collins contends that his workers' compensation claim was
timely because AS 23.30.105(a) [Fn. 8] allows claims for latent
injuries "time limitations notwithstanding." [Fn. 9]  Arctic
Builders contends that subsection .105(a)'s latent injury exception
tolls the statute of limitations until the claimant knows or
reasonably should know of the injury.  Because Collins filed his
claim more than two years after he received actual notice of his
chronic asbestos pleuritis, Arctic Builders argues, his claim
should be barred by the statute of limitations.  Collins replies
with a factual argument: that he timely attempted to file his claim
in 1991, but the clerk at the state workers' compensation office
told him to file with a federal agency, and his application got
lost in the shuffle. 
          Alaska Statute 23.30.105(a) requires that a claim for
disability compensation must be "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." [Fn. 10] 
We have previously held that subsection .105(a) provides a latent
injury exception to this two-year statute of limitations. [Fn. 11] 
For latent injuries, the two-year statute of limitations is tolled
"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." [Fn.
12]
          Collins contends that the last sentence of subsection
.105(a) effectively repeals the general two-year statute of
limitations for any latent injury.  His interpretation directly
conflicts with our previous interpretation of this subsection in
W.R. Grasle Co. v. Alaska Workmen's Compensation Board. [Fn. 13] 
In W.R. Grasle, we noted that, prior to the addition of the last
sentence in a 1962 amendment, AS 23.30.105(a) had two restrictions
on workers' compensation claims: the first sentence of subsection
.105(a) contained a two-year statute of limitations from the time
the claimant had knowledge of the disability and its relationship
to employment, and the second sentence contained a maximum four-
year statute of limitations from the time of injury, regardless of
the claimant's lack of knowledge. [Fn. 14]  Concerning the 1962
amendment, we concluded that the addition of the last sentence of
subsection .105(a) repealed the four-year statute contained in the
second sentence and created a latent injury exception. [Fn. 15] 
The amendment did not affect the general two-year statute of
limitations in the first sentence of subsection .105(a). [Fn. 16] 
Accordingly, the board correctly interpreted subsection .105(a) to
require Collins to file his claim within two years of his actual or
chargeable knowledge of his disability and its relation to his
employment.
          The board found that Collins had actual knowledge of his
work-related asbestos injury on November 3, 1990.  Given Dr.
Burtis's documentation of Collins's injury and of Collins's belief
that the asbestos exposure occurred at the Clear Air Force Base 
and given Collins's deposition testimony acknowledging his full
understanding of his injury as of November 3, we conclude that the
board's finding was supported by substantial evidence.
          Based on the facts before us, however, whether Collins's
claim is barred by the statute of limitations is unclear.  Collins
alleged that he attempted to file his claim some time in 1991, but
that the clerk argued with him about whether his claim was state or
federal, and that Collins's paperwork was apparently lost.  The
board expressly did not reach the statute of limitations issue and
made no factual finding as to Collins's attempted filing.  Whether
Collins made this attempt to file his claim in 1991 is critical
because it could be interpreted as sufficient to avoid the bar by
the statute of limitations or because the clerk's alleged statement
that Collins should not file with the state workers' compensation
board might be a form of estoppel, preventing reliance on the
statute of limitations to dismiss Collins's claim.
          Whether Collins made an attempt to file in 1991 is also
important to a determination of whether the board should excuse
Collins's untimely notice of injury.  Alaska Statute 23.30.100(a)
requires an injured employee to notify his or her employer of a
work-related injury within thirty days of the injury. [Fn. 17]  But
AS 23.30.100(d) gives the board discretion to excuse a failure to
give timely notice if the employee has a satisfactory reason. [Fn.
18]  If Collins had attempted to file his claim in 1991, he is
entitled to argue that the board should excuse his tardiness in
giving notice of his injury, especially given that Collins suffered
from the latent condition of chronic asbestos pleuritis, that he no
longer worked for the company who was his employer at the time of
his exposure, and that the former employer was no longer in
business.  Under these circumstances, the urgency and immediacy
that normally would prompt one to realize that notice of injury
should quickly be filed are no longer present.
          The rationale for requiring notice of injury within
thirty days of the claimant's knowledge of his injury does not
exist here.  We have previously noted that "[t]imely 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." [Fn.
19]  Because the chronic asbestos pleuritis is incurable, timely
notice of claim would not have minimized Collins's injury in this
case.  Because the exposure occurred more than twenty-five years
earlier, a timely notice of injury would not substantially assist
an investigation of the facts surrounding Collins's injury.  Any
prejudice to the employer is attributable to the latency of
asbestosis rather than Collins's lack of prompt notice of injury. 
Accordingly, we remand this action to the board for a determination
of whether Collins initially attempted to file his claim for
workers' compensation within two years of November 3, 1990. [Fn.
20]
V.   CONCLUSION
          Because the board made no finding regarding Collins's
alleged attempt to file his claim in 1991, which, if it occurred,
would prevent the bar of the statute of limitations and may be
sufficient to excuse the tardiness of the notice of injury, we
VACATE the dismissal of Collins's claim and REMAND for factual
determinations of Collins's attempted filing and further
proceedings consistent with this opinion.


                            FOOTNOTES


Footnote 1:

     The facts and proceedings are largely adapted from our fact
presentation in Collins's appeal of a previous purely procedural
dismissal.  See Collins v. Arctic Builders, 957 P.2d 980, 981
(Alaska 1998).


Footnote 2:

     See id. at 981.


Footnote 3:

     See id. at 982-83.


Footnote 4:

     See id.


Footnote 5:

     See Phillip Weidner & Assocs., Inc. v. Hibdon, 989 P.2d 727,
730 (Alaska 1999).


Footnote 6:

     Id. (quoting Grove v. Alaska Constr. & Erectors, 948 P.2d 454,
456 (Alaska 1997)) (internal quotation marks omitted).


Footnote 7:

     See id.


Footnote 8:

     AS 23.30.105(a) states that timing requirements for filing
workers' compensation claims:

          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 in any
event other than arising out of an occupational disease 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 under AS 23.30.180, 23.30.185, 23.30.190,
23.30.200, or 23.30.215.  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 notwithstanding. 


Footnote 9:

     AS 23.30.105(a).


Footnote 10:

     Id.


Footnote 11:

     See Aleck v. Delvo Plastics, Inc., 972 P.2d 988, 991 (Alaska
1999).


Footnote 12:

     W.R. Grasle Co. v. Alaska Workmen's Compensation Bd., 517 P.2d
999, 1002 (Alaska 1974) (footnote omitted).


Footnote 13:

     517 P.2d 999 (Alaska 1974).


Footnote 14:

     See id. at 1002.


Footnote 15:

     See id.


Footnote 16:

     See id. at 1003.


Footnote 17:

     AS 23.30.100(a) provides: "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."


Footnote 18:

     Alaska Statute 23.30.100(d) 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;

                    (2) if the board excuses the failure
on the ground that for some satisfactory reason notice could not be
given;

                    (3) unless objection to the failure
is raised before the board at the first hearing of a claim for
compensation in respect to the injury or death.


Footnote 19:

     Dafermo v. Municipality of Anchorage, 941 P.2d 114, 118
(Alaska 1997).  


Footnote 20:

     The board may excuse Collins's lack of timely notice of injury
even if Collins's original attempt to give notice was not within
the thirty day window.  Alaska Statute 23.30.100(d)(2) requires
only that the board find "some satisfactory reason notice could not
be given" and not that an applicant make an initial timely notice
of injury.