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Dougan v. Aurora Electric, Inc. (6/28/2002) sp-5591
Dougan v. Aurora Electric, Inc. (6/28/2002) sp-5591
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
RANDY S. DOUGAN, )
) Supreme Court Nos. S-9937/9958
Appellant/Cross-Appellee, )
) Superior Court No. 3AN-00-3626
CI
v. )
) O P I N I O N
AURORA ELECTRIC INC., EAGLE )
PACIFIC INSURANCE, ALASKA ) [No. 5591 - June 28,
2002]
WORKERS COMPENSATION )
BOARD, )
)
Appellees/Cross-Appellants. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Eric T. Sanders, Judge.
Appearances: Randy Dougan, pro se, Eagle
River. Joseph M. Cooper, Russell, Tesche,
Wagg, Cooper & Gabbert, Anchorage for
Appellees/Cross-Appellants.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Randy S. Dougan sustained work-related injuries during
his employment with Aurora Electric. The Alaska Workers
Compensation Board heard and resolved his claims. Dougan
appealed the boards decision to the superior court. Dougan now
appeals the superior courts decisions that he was not entitled to
penalties and interest on his award and that thirteen of his
fifteen claims should be dismissed. Aurora cross-appeals the
decision by the superior court that the board wrongly denied
Dougan a compensation rate adjustment.
We affirm the denial of penalties and interest because
substantial evidence supports that decision. We affirm dismissal
of eleven of the claims because, although the court erred in
dismissing them for inadequate briefing without giving the pro se
litigant an opportunity to correct the briefing, the error was
harmless in the circumstances of this case. We remand to the
board the remaining two claims dismissed by the superior court
for factual determinations. Finally, we reverse the decision
remanding the compensation rate adjustment to the board for
recomputation because the boards computation was proper under AS
23.30.220 as it has been amended.
II. FACTS AND PROCEEDINGS
A. Facts
Randy Dougan sustained an injury to his lower back on
November 1, 1996 while working as an electrician for Aurora
Electric.1 Dougan saw Dr. Edward M. Voke for this back injury a
few days later. The doctor diagnosed Dougan with acute
lumbosacral facet syndrome, an inflamation of the articulations
between the vertebrae. Dougan was placed on temporary disability
beginning on November 5, 1996, throughout which time he was
periodically paid either temporary total disability (TTD) or
temporary partial disability (TPD). Dougans gross weekly
earnings were calculated under AS 23.30.220(4)(A) using the
thirteen weeks between July 27, 1996 and November 2, 1996.
Dr. Voke referred Dougan to Dr. Michael James on
December 9, 1996 for a condition that Dr. Voke diagnosed as
chronic low back pain. Dougan continued to be unable to work and
received either TTD or TPD until January 8, 1997 when Dr. James
stated that Dougan could return to light work, which was
available to him. Benefits were suspended on January 9, 1997.
However, on February 19, 1997, Dr. James reported that no light
work had been available, resulting in Dougan not working during
the previous month. That same day, Dr. James released Dougan to
work as an electrician without limitation from that day forward.
Although Dougans benefits were suspended on January 9, 1997 when
he was released to light duty, his inability to find such work
resulted in the reinstatement of his benefits from January 31,
1997 to February 19, 1997. With Dr. Jamess release to full duty,
though, Dougans benefits were suspended starting February 20,
1997. Dougan eventually received benefits for January 9, 1997
through January 31, 1997 with penalties, due to Auroras delay in
payment.
Dr. James determined that Dougan was medically
stable and could return to medium work on April 21, 1997.
Because of Dr. Jamess finding of medical stability, benefits were
reinstated for the time between the last suspension, February 20,
1997, to Dougans date of stability, April 20, 1997. Benefits
were then suspended on April 21, 1997. Eventually, Aurora paid
benefits for the time between Dougans first release to full duty
and Dr. Jamess finding of medical stability, February 20, 1997 to
April 20, 1997, with penalties. On April 29, 1997, Dr. James
reported that Dougan had a Permanent Partial Impairment (PPI)
rating of five percent and Aurora paid Dougan a lump sum pursuant
to the PPI rating on May 13, 1997.
On June 20, 1997 Dr. Lee B. Silver examined Dougan for
an Employer Medical Evaluation (EME) and concluded that Dougan
was medically stable and could return to work as an electrician
with no restrictions. Dr. Silver also concluded that Dougan had
a PPI of zero percent and that he required no further medical
treatment. On July 11, 1997 Aurora controverted all benefits due
on the basis of Dr. Jamess April 29, 1997 report and Dr. Silvers
June 24, 1997 report. Aurora eventually paid Dougan all benefits
due to him.
In May 1997 Dougan stopped treatment with Dr. James and
started treatment with Dr. Samuel H. Schurig. On June 13, 1997
Dr. Schurig stated that Dougan was medically stable; however, on
June 24 he found that Dougan was not medically stable but that he
could return to light work as it became available. On September
29, 1997, Dr. Schurig stated that Dougan was still medically
unstable but was continuing to show improvement.
A second independent medical evaluation (SIME) was
performed by Dr. Douglas G. Smith on January 23, 1998. Dr. Smith
stated that, due to Dougans objective improvement while under Dr.
Schurigs care, a medical stability date of November 1, 1997 was
justified. Aurora subsequently paid TTD benefits for April 21,
1997 through May 15, 1997 with interest and penalties and TTD
benefits for May 16, 1997 through November 4, 1997 with interest.
Aurora also paid all medical bills for treatment prior to the
SIME report. Some of Dr. Schurigs bills were returned to his
office because they were lacking information. Dr. Schurigs
office resubmitted the bills with the requested information on
June 11, 1998 and the bills were paid on June 23, 1998.
B. Proceedings
A. Dougan filed a petition with the Alaska Workers Compensation
Board in April 1997 making several allegations of misconduct
against Aurora and its insurer in the handling of his claim.
Dougan also requested a PPI rating by Dr. Schurig, a compensation
rate adjustment, and penalties and interest on TTD, PPI and
medical benefits. In September 1997 Dougan filed an Application
for Adjustment of Claim, requesting TTD benefits from April 21,
1997 on, with penalties, interest, medical costs, and
transportation costs. Dougan alleged that Aurora unfairly and
frivolously controverted his claims. In addition to these
petitions, Dougan filed several petitions alleging misconduct by
Aurora, violations of the Alaska Workers Compensation Act, and
civil and criminal causes of action.
In May 1999 the board determined after oral argument
that it did not have authority to adjudicate the civil,
constitutional, or criminal claims. The board concluded that, in
criminal matters, its authority was limited to referring matters
to the proper authorities if a violation became apparent during
the course of the proceedings. A second hearing was held on
October 21, 1999 to determine the substantive workers
compensation issues of Dougans claims. On the substantive
issues, the board ruled that: (1) Dougan was not entitled to
penalties for late-paid time-loss compensation, medical benefits
and PPI benefits; (2) Dougan was not entitled to interest for
late-paid time-loss compensation, medical benefits and PPI
benefits; (3) Aurora did not unfairly or frivolously controvert
Dougans claims; (4) Dougan was not entitled to a compensation
rate adjustment; (5) Dougan was not entitled to a PPI rating by
Dr. Schurig the board dismissed this issue without prejudice;
(6) Dougans request that the board refer allegations of
misconduct to other agencies and authorities was denied.
Dougan appealed the boards order to the superior court,
raising fifteen issues. The superior court held that Dougan
abandoned thirteen of the issues because these issues were not
adequately briefed or were not listed in the points on appeal.
The two remaining issues were whether the board properly found
that Dougan was not entitled to penalties and interest on late-
paid benefits and whether the board properly denied Dougan a
compensation rate adjustment. The superior court held that the
board properly denied interest and penalties to Dougan. The
issue of whether a compensation rate adjustment was due was
remanded for a determination under Gilmore v. Alaska Workers
Compensation Board2 of whether Dougans past employment history is
an accurate predictor of losses due to injury.
Dougan appealed the superior courts ruling. Aurora
filed a cross-appeal claiming that the superior court improperly
ruled that the board erred in finding that no compensation rate
adjustment was due.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate court
of appeal in an administrative matter, we independently review
and directly scrutinize the merits of the boards decision.3 We
review procedural decisions of the superior court under an abuse
of discretion standard.4 We will reverse a ruling for abuse of
discretion only when, after reviewing the whole record, we are
left with a definite and firm conviction that the superior court
erred.5
Factual findings made by the board are reviewed under
the substantial evidence standard.6 Factual findings will be
upheld so long as there is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. 7
Discovery rulings are generally reviewed for abuse of discretion.8
In questions of law involving the agencys expertise, a
rational basis standard will be applied and we will defer to the
agencys determination as long as it is reasonable.9 We will
substitute our own judgment for questions of law that do not
involve agency expertise.10 Constitutional questions are
questions of law for which we will substitute our own judgment.11
We will adopt the rule of law that is most persuasive in light of
precedent, reason, and policy.12
IV. DISCUSSION
There is a threshold issue: whether this claim is
properly before this court. The superior court remanded the
issue of whether Dougan was entitled to a compensation rate
adjustment to the board. We have held that when a superior court
acts as an intermediate appellate court and reverses and remands
an agency ruling, the superior courts decision is not a final
judgment.13 Under the appellate rules, an appeal as a matter of
right may not be maintained when no final order has been issued
by the superior court.14 However, we have the discretion to treat
this as a petition for review pursuant to Appellate Rule 402.15
We may review a non-final judgment when postponement of review
will result in undue delay.16 Because we find that both the board
and the superior court applied a test that is superfluous and
that remanding the issue back to the board will result in undue
delay, we treat this appeal as a petition for review and grant
the petition so as to reach the merits.
A. The Superior Court Did Not Err in Finding that the
Board Properly Denied Penalties and Interest.
Dougan claims that the board erred in denying him
penalties and interest on compensation payments controverted by
Aurora. An employee is entitled to interest on compensation that
is not paid when due.17 An employee is also entitled to penalties
on compensation due if compensation is not properly controverted
by the employer.18 We have held that an employer must have
evidence that would justify denial of a compensation award in
order to make a good faith controversion.19 Specifically, there
must be reliance by the insurer on responsible medical opinion or
conflicting medical testimony.20
The board found that Aurora properly controverted all
benefits on July 11, 1997 on the basis of Dr. Jamess report and
Dr. Silvers report. The board also found that Aurora eventually
agreed to the payment of compensation for the period of April 21,
1997 through November 4, 1997, but properly postponed payment
until Dougans employment activities for that period were
confirmed. The board found that penalties and interest were
properly paid and that neither further penalties nor further
interest was due. The board found that Dr. Schurigs bills were
paid within the requisite time after re-submission with the
requested information. The superior court upheld the boards
findings using the substantial evidence standard.
Dougan also claims that the board failed to award
penalties under AS 23.30.250. The board found that it was
without jurisdiction to award penalties under this statute.
Alaska Statute 23.30.250 provides that one who makes a false or
misleading statement is civilly liable to a person adversely
affected by the conduct.21 The civilly liable portion of AS
23.30.250(a) is in reality not a penalty provision but a
legislative declaration that one who engages in certain specific
conduct will be liable in a civil action to a person adversely
affected by the conduct. Alaska Statute 23.30.250(a) implies
that the civil action should be brought in court rather than
before the board both by the term civilly liable and by the
conjunction of that term with the other provisions of subsection
.250(a) which refer to criminal penalties which obviously must be
adjudicated in court. This conclusion is bolstered by the fact
that AS 23.30.250(b) expressly relates to remedies that the board
can impose upon a finding that a claimant has made a false or
misleading statement. Therefore the board did not err in denying
Dougan a remedy for civil penalties under AS 23.30.250(a).
All interest payments due were paid by Aurora. Dougan
offers no time period for which he claims he is specifically owed
interest on compensation payments. According to the facts found
by the board and stated above, compensation has been paid for the
entire period that Dougan was injured, November 1, 1996 through
November 4, 1997. Payments that were late due to controversion
by Aurora for the periods of January 9, 1997 through January 30,
1997 and April 21, 1997 through November 4, 1997 have been paid
with interest. Therefore, Dougan received the interest payments
to which he was entitled.
The board had substantial evidence to find that Aurora
controverted the claims in good faith and that Dougan is not owed
penalties or interest.22 Therefore, we uphold the decision of the
superior court finding that the board properly denied penalties
and interest.
B. The Superior Court Erred in Dismissing Thirteen of
Dougans Fifteen Claims.
Dougan claims that the superior court improperly
dismissed thirteen of his fifteen claims because his brief did
not comply with the appellate rules. The superior courts
decision offers very little explanation of the reasons for the
dismissal. Only one concrete example of the briefing inadequacy
was given for all thirteen claims. There is no indication that
Dougan was given notice of the inadequacy and a chance to comply
with the briefing requirements.
Under the appellate rules, the superior court could
have given Dougan a chance to correct the brief.23 We have held
that the briefs of a pro se litigant are held to a less stringent
standard than those of attorneys.24 A judge must inform a pro se
litigant of the proper procedure for the action he or she is
obviously attempting to accomplish.25 Specifically, a judge must
notify a pro se litigant of defects in his or her brief and give
the party an opportunity to remedy those defects.26 Here, before
dismissing the claims, the superior court should have notified
Dougan of the defects in his brief and given him leave to correct
those defects. Since Dougan made a good faith effort to comply
with briefing requirements, we find that the superior court erred
in dismissing thirteen of his fifteen claims.
We have reviewed de novo the thirteen claims that were
dismissed. We find that, no matter how restated, eleven of these
claims are meritless and we dismiss them as having no basis in
the law. These eleven claims include alleged violations of
Dougans right to privacy27 and equal protection rights,28 the
boards refusal to refer various violations to other agencies,29
Dougans third-party immunity claim,30 Dougans claim regarding the
exclusive remedy provision of the Act,31 the boards finding that
it was without jurisdiction to rule on Dougans discrimination
claim,32 and denial of Dougans claims that the board failed to
issue its opinion within thirty days,33 that his claim was heard
by more than one panel,34 and that Dougan was entitled to a second
permanent partial impairment rating.35 However, we find that two
of his fifteen claims may proceed and we remand these claims to
the board to make the appropriate findings.
First, Dougans claim that his due process rights were
violated by the boards failure to rule on his discovery requests
requires hearing by the board. We have held that a fair and
meaningful hearing, as required by due process, does require that
the parties be given adequate access to information requested in
discovery.36 The record indicates that Dougan filed three
discovery requests: one on December 3, 1998, a second on December
17, 1998, and the last on February 17, 1999. In addition to his
discovery requests, Dougan also demanded that the board compel
discovery in petitions filed on December 17, 1998 and April 5,
1999, as well as in an objection filed on February 18, 1999. At
the pre-hearing conference on March 5, 1999, the discovery issues
were discussed and the parties agreed to defer the questions
regarding discovery until the issues concerning the boards
jurisdiction to hear Dougans criminal and civil claims against
Aurora were decided. In the boards order ruling that the board
did not have jurisdiction to hear the criminal and civil claims,
the board stated that discovery would not be compelled because
evidence related to these issues is not relevant to a material
issue at [the] hearing. In his petition for reconsideration,
Dougan again asked the board to reconsider his discovery request
because the referenced petition to compel discovery dated
12/17/98 does include other relevant issues. Also, in an
objection filed on June 7, 1999, Dougan stated that his discovery
request filed on February 17, 1999 was still disputed by the
parties and had not been resolved by the board. We find no
indication that the board ever addressed Dougans requests.
Second, Dougan alleges that the board failed to include
the value of his employer-provided health benefits in his
compensation rate. Dougan claims that he was entitled to this
adjustment under 8 AAC 45.220, which includes health benefits as
periodic payments that are taken into account in determining an
employees compensation rate.37 In fact, the board has held that
the statute does not leave any discretion when calculating gross
earnings and that health and life insurance benefits must be
included as a periodic payment. 38 Dougan raised this issue to
the board in an amendment to a petition and the issue was
discussed in a pre-hearing conference on March 18, 1999.
Therefore, we remand this issue back to the board for a
determination of whether Dougan is entitled to a compensation
rate adjustment based on the amount of his employer-provided
health benefits.
C. The Superior Court Erred in Remanding the Issue of
a Compensation Rate Adjustment to the Board.
Aurora argues on cross-appeal that, because AS
23.30.220(a)39 has been amended, the case law that both the board
and the superior court applied is no longer applicable. In
Gilmore v. Alaska Workers Compensation Board,40 we found that
application of a prior version of AS 23.30.22041 was
unconstitutional under the Equal Protection Clause.42 The holding
in Gilmore is largely based on the fact that wage determinations
under the prior version of the statute based compensation rates
exclusively on the average wage earned during a period of over a
year without providing an alternate approach if the result was
unfair.43 The amended version of AS 23.30.220 corrects that
problem by providing a variety of formulas for differing
employment situations. The board correctly applied the new
version of AS 23.30.220(a) when it initially calculated Dougans
compensation rate. The amended statute closely follows the model
law cited in Gilmore as an example of a statute that would not
violate the Equal Protection Clause.44 The application of the
test outlined by this court to deal with an unfair application of
the statute is superfluous due to these amendments. Therefore,
we reverse the superior courts remand of the compensation rate
adjustment and hold that the Gilmore test is no longer necessary
when the boards initial determination of compensation is based on
the amended version of AS 23.20.220.
V. CONCLUSION
Because substantial evidence supported the superior
courts decision to deny penalties and interest, we AFFIRM the
denial of penalties and interest. Because the superior court
dismissed Dougans claims without providing him an opportunity to
provide adequate briefing, we hold that the superior court erred
in dismissing those claims. But reviewing the thirteen claims de
novo, we hold that eleven of the claims are without merit and
therefore AFFIRM the superior courts dismissal of them as
harmless error. As to the remaining two claims (alleged violation
of Dougans due process rights by failing to rule on his discovery
requests and alleged error in the compensation rate adjustment
based on employer-provided health benefits), we REVERSE the
superior courts dismissal and REMAND the claims to the board for
factual determinations. Finally, we REVERSE the superior courts
decision applying the Gilmore standard to the amended version of
AS 23.30.220, because the Gilmore standard is not applicable to
the revised statute; we reinstate the boards denial of a
compensation rate adjustment.
_______________________________
1 The employer, Aurora Electric Inc., and its insurer,
Eagle Pacific Insurance Group, will collectively be referred to
as Aurora in this opinion.
2 882 P.2d 922 (Alaska 1994).
3 DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000);
Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896,
903 (Alaska 1987).
4 Morgan v. State, Dept of Revenue, 813 P.2d 295, 297 n.4
(Alaska 1991).
5 Id.
6 DeYonge, 1 P.3d at 94.
7 Grove v. Alaska Constr. & Erectors, 948 P.2d 454, 456
(Alaska 1997) (quoting Miller v. ITT Arctic Servs., 577 P.2d
1044, 1046 (Alaska 1978)).
8 Christensen v. NHC Corp., 956 P.2d 468, 473 (Alaska
1998).
9 Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746
P.2d 896, 903 (Alaska 1987).
10 Id. at 903.
11 Sonneman v. Knight, 790 P.2d 702, 704 (Alaska 1990).
12 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
13 City of North Pole v. Zabek, 934 P.2d 1292, 1295
(Alaska 1997) (citing City and Borough of Juneau v. Thibodeau,
595 P.2d 626, 629 (Alaska 1979)).
14 See Alaska R. App. P. 202.
15 Zabek, 934 P.2d at 1296.
16 Alaska R. App. P. 402(b)(1).
17 8 AAC 45.142.
18 AS 23.30.155.
19 Harp v. ARCO Alaska, Inc., 831 P.2d 352, 358 (Alaska
1992).
20 Id. (internal quotations and citations omitted).
21 AS 23.30.250(a).
22 For a further discussion of the Boards factual findings
see Part IV.B., infra.
23 Alaska R. App. P. 212(c)(11).
24 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
25 Id.
26 See Bauman v. State, Div. of Family & Youth Servs., 768
P.2d 1097, 1099 (Alaska 1989) (indicating that judges must warn
pro se litigants on aspects of procedure when the pro se litigant
has filed a defective pleading).
27 Administrative agencies have no jurisdiction to decide
issues of constitutional law such as a violation of ones right to
privacy. See State, Dept of Labor, Wage & Labor Div. v. Univ. of
Alaska, 664 P.2d 575, 580 (Alaska 1983).
28 Dougan failed to make a prima facie case of a violation
of his equal protection rights because he failed to show that the
board intended to discriminate against him based on an arbitrary
and unjustifiable standard. See Rollins v. State, Dept of
Revenue, Alcoholic Beverage Control Bd., 991 P.2d 202, 210
(Alaska 1999).
29 There was substantial evidence to support the boards
findings that Aurora did not commit criminal violations during
the proceedings.
30 Claims of violations relating to construction project
permitting and inspections are outside the jurisdiction of the
board. See Univ. of Alaska, 664 P.2d at 580.
31 The exclusive remedy provision of the Act (AS
23.30.055) prevents an employee from bringing subsequent civil
actions arising out of work-related injuries and the board is
without jurisdiction to hear civil claims.
32 Claims made under AS 23.30.247 are required to brought
in a private civil action. The board is without jurisdiction to
decide such claims.
33 Dougan failed to offer any evidence as to how the
boards late-filed decision prejudiced him.
34 Dougan failed to offer any evidence as to how he was
prejudiced by his claim having been heard by more than one panel.
35 Since the board retained jurisdiction over this issue,
there has been no final judgment and it is not properly before
this court.
36 Rollins v. State, Dept of Revenue, Alcoholic Beverage
Control Bd., 991 P.2d 202, 211 (Alaska 1999).
37 8 AAC 45.220(c)(3)(B).
38 Irvine v. K&L Distribs., AWCB No. 00-0023 (2000).
39 AS 23.30.220(a) states in pertinent part:
(a) Computation of compensation under this
chapter shall be on the basis of an employees
spendable weekly wage at the time of injury.
An employees spendable weekly wage is the
employees gross weekly earnings minus payroll
tax deductions. An employees gross weekly
earnings shall be calculated as follows:
(1) if at the time of injury the
employees earnings are calculated by the
week, the weekly amount is the employees
gross weekly earnings;
(2) if at the time of injury the
employees earnings are calculated by the
month, the employees gross weekly earnings
are the monthly earnings multiplied by 12 and
divided by 52;
(3) if at the time of injury the
employees earnings are calculated by the
year, the employees gross weekly earnings are
the yearly earnings divided by 52;
(4) if at the time of injury the
(a) employees earnings are
calculated by the day, hour, or by the output
of the employee, the employees gross weekly
earnings are the employees earnings most
favorable to the employee computed by
dividing by 13 the employees earnings,
including overtime or premium pay, earned
during any period of 13 consecutive calendar
weeks within the 52 weeks immediately
preceding the injury.
40 882 P.2d 922 (Alaska 1994).
41 AS 23.30.220(a) prior to the 1995 amendment stated in
relevant part:
(A) The spendable weekly wage of an injured
employee at the time of an injury is the
basis for computing compensation. It is the
employees gross weekly earnings minus payroll
tax deductions. The gross weekly earnings
shall be calculated as follows:
(1) the gross weekly earnings are
computed by dividing by 100 the gross
earnings of the employee in the two calendar
years immediately preceding the injury;
(2) if the employee was absent from the
labor market for 18 months or more of the two
calendar years preceding the injury, the
board shall determine the employees gross
weekly earnings for calculating compensation
by considering the nature of the employees
work and work history, but compensation may
not exceed the employees gross weekly
earnings at the time of the injury.
42 Gilmore, 882 P.2d at 929.
43 Id. at 928-29.
44 Id. at 929 n.15.
