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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bustamante v. Alaska Workers' Compensation Board (11/29/2002) sp-5648

Bustamante v. Alaska Workers' Compensation Board (11/29/2002) sp-5648

     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,


JOHNNIE BUSTAMANTE,                )
                              )    Supreme Court No. S-10003
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3AN-00-3661 CI
ALASKA WORKERS                          )    O P I N I O N
MARK, INC., AMERICAN HOME          )     [No. 5648 - November 29,
INSURANCE CO.,                          )
             Appellees.                 )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage,  Elaine  M. Andrews,  and  Kodiak,
          Donald D. Hopwood, Judges.

          Appearances:   Johnnie  Bustamante,  pro  se,
          Anchorage.  Theresa Hennemann and Rebecca  J.
          Hiatt,   Holmes   Weddle   &   Barcott,   PC,
          Anchorage,     for    Appellees    Ounalashka
          Corporation and Reliance Insurance Co.  Allan
          E.  Tesche, Russell, Tesche, Wagg,  Cooper  &
          Gabbert, Anchorage, for Appellees Space  Mark
          and American Home Assurance.

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

          CARPENETI, Justice.


          I.   Johnnie Bustamantes workers compensation administrative

appeal was dismissed in the superior court due to his failure  to

pay   for   the  preparation  of  a  transcript  of  the  Workers

Compensation Board proceedings.  Because the superior  court  had

the  power to waive the transcript requirement, we remand for the

superior court to decide whether to waive the requirement in this



                 Johnnie  Bustamante worked for both Space  Mark,

Inc.  and Ounalashka Corporation in 1997.  Bustamante claimed  an

injury  from the overuse of his hands while working on  computers

at  Space  Mark  and  filed  a  claim  with  the  Alaska  Workers

Compensation Board (the board).  Both employers controverted  all

benefits.   The  board found that Bustamante  did  not  suffer  a

compensable injury in the course and scope of his employment with

either employer.  Bustamantes claims for benefits were denied and


          Bustamante  alleged six errors in  his  appeal  to  the

superior  court.   At  the time of filing his appeal,  Bustamante

also filed a request for court-appointed counsel, an extension of

time  to  prepare  his appeal, and an exemption from  payment  of

fees.   Superior Court Judge Elaine M. Andrews granted Bustamante

an exemption from the payment of fees specified in Administrative

Rule  9(f)(1).  However, Judge Andrews denied Bustamantes request

for  counsel,  stating  that there is  no  provision  to  appoint

counsel in these cases.

          Bustamante was informed several times that, to  prepare

the  record for appeal, he would need to arrange and pay for  the

preparation  of  a  transcript of  the  boards  proceedings.   In

response,  Bustamante filed a request for a waiver of  all  costs

and  fees,  stating  that he was a disabled  student  relying  on

charity  to  maintain  himself.  Judge Andrews  issued  an  order

stating  that all costs and fees that could be waived had already

been waived.

          The  board,  having filed a notice of non-participation

in the appeal, filed a motion requesting more time to prepare the

record  on  appeal,  citing Bustamantes failure  to  prepare  the

transcripts.  In response to the second notice sent to him by the

board regarding the transcript, Bustamante replied:

          I   agree   that  ordinarily   I   would   be
          responsible  to  provide transcripts  to  the
          superior  court under Appellate Rule  604(b).
          However,    since   the   Alaska    Workers[]
          Compensation   Board   (AWCB)    doubts    my
          competency  and  [I] have not  been  provided
          with appropriate legal coun[sel] to represent
          me, I cannot comply with your request.
          Since   AWCB   doubts   my   current   mental
          stability,  I  simply cannot enter  into  any
          agreement  to  authorize  production  of  the
          requested transcripts.
          Recommend  AWCB forward requested transcripts
          to the superior court as soon as possible.
          In  addition, please be advised that I  am  a

          disabled  student currently attending  Alaska

          Pacific  University  and  have  no  financial

          resources    to    produce   the    requested


          Space Mark filed a motion to dismiss Bustamantes appeal

with prejudice on the grounds that Bustamante had not paid for or

accepted  responsibility  for the payment  of  preparation  of  a

transcript.   Ounalashka  filed a nonopposition  to  Space  Marks

motion  to  dismiss.   Superior Court  Judge  Donald  D.  Hopwood

dismissed   Bustamantes   case  without  prejudice.    Bustamante



          We  exercise our independent judgment when interpreting

the  civil  rules,1  adopt[ing] the rule  of  law  that  is  most

persuasive  in  light  of precedent, reason,  and  policy.2   The

decision  to appoint counsel for a civil litigant is a procedural

decision, which we review for an abuse of discretion.3   A  court

abuses  its discretion when we are left with a definite and  firm

conviction,  after  reviewing the whole record,  that  the  trial

court erred in its ruling.4


     A.   The Superior Court Had the Discretion To Allow Deviation

     from the Requirements of Appellate Rule 604(b).

          Bustamante  argues  that the superior  court  erred  in

dismissing  his case without reviewing the entire record.   Space

Mark  moved for dismissal on the grounds that Bustamante had  not

paid   for   or  accepted  responsibility  for  the  payment   of

preparation  of a transcript of Board proceeding as  required  by

Appellate Rule 604(b).

          Appellate   Rule   604(b)   governs   the   record   on

administrative  appeals.5  The preparation of the  transcript  is

governed  by Appellate Rule 604(b)(1)(B)(iv), imposing the  costs

of preparing a transcript on the appellant absent an agreement to

the contrary or an order of the court and allowing the agency  to

require advance payment of the estimated costs.

          We  have  previously  expressed  our  support  for  the

principle  that financial hardship should not preclude access  to

the   courts.6   The  text  of  Appellate  Rule  604(b)(1)(B)(iv)

supports  this  principle: The court may  order  the  parties  to

deviate from the default position that the appellant pays for the

transcript.7   The  superior  courts  order  denying  Bustamantes

request  for a waiver of costs indicates that the court  was  not

aware of this power, as it stated that [a]ll costs and fees  that

can be waived have been waived.

          We  have  previously held that deviation from Appellate

Rule  604(b)(1)(B)(iv)  is acceptable to  ensure  access  to  the

courts.   In  Baker v. University of Alaska,8 we were faced  with

the  question whether Appellate Rule 604(b)(1)(B)(iv) allows  for

accommodation  when a party requests relief from  the  prepayment

requirement.9  While we specifically stated that the case did not

require us to determine whether Baker should be absolved  of  his

duty to pay for preparing the record and transcript, just whether

he   must   pay  in  advance,10  we  held  that  Appellate   Rule

604(b)(1)(B)(iv)  allows the superior court to deviate  from  the

ordinary  procedure requiring prepayment upon a showing  of  good

cause,  citing  the  principle that the size  of  a  partys  bank

          account should not foreclose [that] partys opportunity to be

heard.11        While there was no agreement between the  parties

pursuant  to Appellate Rule 604(b)(1)(B)(iv) regarding  costs  of

transcript  preparation,  the  court  had  the  power  to   order

otherwise;   this   power   included   waiving   the   prepayment

requirement, requiring the appellant to narrow the designation of

needed  transcripts, or even allowing designation of the  use  of

tapes (with log notes) if the testimony being reviewed was not so

lengthy as to cause an undue burden for the reviewing court.   As

the  courts  statement indicates it was not aware of the  options

available,  it  was  an  abuse of discretion  simply  to  dismiss

Bustamantes case.

     B.   Bustamante Was Not Entitled to Appointed Counsel for His


          Bustamante  argues  that the trial  court  should  have

appointed  counsel to assist him in his appeal.  To hire  private

counsel, Bustamante states, one must be competent.  Citing to the

boards   statement   questioning   his   competency,   Bustamante

apparently asserts that he was entitled to have counsel appointed

for him.12

          In   its  decision,  the  board  discussed  Bustamantes

psychiatric  history,  including his diagnosis  of  a  conversion

disorder.   The board relied on Bustamantes previous  psychiatric

history  in  coming to its conclusion that this history  was  the

cause  of his current conversion disorder, not his work at  Space

Mark.    The   board  did  state  that  based  on  the  employees

psychiatric  diagnoses,  he  did  not  knowingly  make  false  or

misleading statement[s].  The board also question[ed] whether his

mental  condition may affect his recollection of his  medical  or

pharmacological  history, or his ability to  testify  truthfully.

The  board,  however, did not indicate that  Bustamante  was  not

competent  to  enter  into a contract for  legal  representation.

Further,  we  are  unpersuaded that it did  anything  to  prevent

Bustamante from hiring counsel.

          As   it  does  not  appear  that  the  boards  decision

prevented  Bustamante  from  hiring  counsel,  we  next  consider

whether  the superior court erred in refusing to appoint  counsel

for Bustamante.  Relying on the principles justifying appointment

of  counsel  in  criminal cases, we have allowed  appointment  of

counsel  in  certain  civil  cases or quasi-civil  proceedings.13

While  an  indigent person has no right to appointed  counsel  in

most civil cases, we have allowed appointment in several types of

cases,14  including   termination  of  parental  rights,15  child

custody,16 paternity suits,17 and civil contempt proceedings.18

          Bustamantes claim does not fall into one of the already

recognized  exceptions  for appointment of  counsel  in  a  civil

proceeding.  We must therefore determine whether Bustamantes  due

process  rights were violated by the superior courts  failure  to

appoint  counsel.   We  have adopted19 the  balancing  test  from

Mathews v. Eldridge20 to determine what process is due:

          Identification  of the specific  dictates  of

          due  process generally involves consideration

          of   three  distinct  factors:  the   private

          interest affected by the official action; the

          risk  of  an  erroneous deprivation  of  such

          interest through the procedures used and  the

          probable  value,  if any,  of  additional  or

          substitute    procedural   safeguards;    and

          finally,  the governments interest, including

          the  fiscal  and administrative burdens  that

          additional     or    substitute    procedural

          requirements would entail.[21]

          The private interest of a litigant to have counsel in a

workers compensation case is not nearly as strong as the interest

involved  in  cases  where  the litigants  are  already  afforded

appointed counsel by this court.  While an unlitigated claim is a

species  of  property,22  it is an interest  that  is  much  less

important  than the exercise of parental rights, the  custody  of

          children, or the deprivation of liberty.

          Without  counsel, a litigants chance of  success  on  a

workers compensation claim may be decreased.  However, it is  not

clear  that  failing to appoint counsel in a workers compensation

case  results in an erroneous deprivation of a litigants  rights,

especially  considering that the workers compensation  board  has

extensive  experience with pro se litigants and  considering  the

statutory  framework  for  the recovery  of  attorneys  fees  for

successful workers compensation claimants.23

          Finally,  the state has a very strong interest  in  not

appointing counsel for workers compensation litigants.  Requiring

the  state  to  pay  for counsel for workers compensation  claims

would be an extraordinary fiscal burden.

          As  the  board did not prevent Bustamante  from  hiring

private counsel with its decision and there is no legal basis for

appointment  of  counsel, the board did not err  in  refusing  to

appoint counsel for Bustamante.


          Because  Bustamante had no right to the appointment  of

counsel  at public expense, we AFFIRM the superior courts  denial

of  his  motion for appointment of counsel.  Because the superior

court  was apparently unaware that it had the discretion to waive

the requirement that Bustamante prepay for transcript preparation

costs, or to narrow the designation of needed transcripts, or  to

order  that the appeal be heard by listening to tapes instead  of

by  reading  transcripts, we REVERSE the order of  dismissal  and

REMAND   for  the  superior  court  to  exercise  its  discretion

regarding preparation of a transcript.

     1     Peter  v. Progressive Corp., 986 P.2d 865, 867 (Alaska

     2    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     3    Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254
(Alaska 2000).

     4     Peter  Pan Seafoods, Inc. v. Stepanoff, 650 P.2d  375,
378-79 (Alaska 1982).

     5    Alaska R. App. P. 604(b)(1) provides, in part:

                  (b)   Appeals   From   Administrative
          Agencies.      (1) Record on Appeal.              (A) The record
          on appeal consists of the original papers and exhibits filed with
          the administrative agency, and a typed transcript of the record
          of proceedings before the agency.                 (B) Appellate
          Rule 210 shall apply except that:
                         (i)  Appellate Rule  210(b)(1)
          and (2) shall not apply.
                         . . . .
                         (iv)  In  the  absence  of  an
          agreement between the parties or an order  of
          the  court  to  the contrary, all  reasonable
          costs  incurred in connection with  preparing
          the  transcript and the courts  copy  of  the
          agency  file shall be borne by the appellant.
          The  preparing  agency  may  require  advance
          payment  of the costs as reasonably estimated
          by the agency.
     6     Baker  v. Univ. of Alaska, 22 P.3d 440, 442-43 (Alaska

     7    Alaska R. App. P. 604(b)(1)(B)(iv).

     8    22 P.3d 440 (Alaska 2001).

     9    Id. at 442.

     10    Id.

     11     Id.  at  443 (internal quotation marks and  footnotes
omitted) (alteration in original).

     12     It  is unclear on what legal grounds Bustamante bases
this  proposition.   While this court has appointed  counsel  for
indigent  civil litigants in certain cases, see,  e.g.,  V.F.  v.
State,  666 P.2d 42, 44-45 (Alaska 1983) (termination of parental
rights); Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979) (child
custody);  Reynolds v. Kimmons, 569 P.2d 799, 803  (Alaska  1977)
(paternity);  and  Otton v. Zaborac, 525 P.2d  537,  538  (Alaska
1974)   (civil  contempt  proceedings  for  nonpayment  of  child
support), the decision to do so has turned on the requirements of
due  process,  and  not the mental state of the  party  for  whom
appointed counsel is sought.  See also infra at 8-10.

     13    Reynolds, 569 P.2d at 801.

     14    Langfeldt-Haaland v. Saupe Enters., 768 P.2d 1144, 1146-
47 (Alaska 1989).

     15    V.F., 666 P.2d at 44-45.

     16    Flores, 598 P.2d at 895.

     17    Reynolds, 569 P.2d at 803.

     18    Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974).

     19     In  the  Matter of K.L.J., 813 P.2d 276, 279  (Alaska

     20    424 U.S. 319 (1976).

     21    In the Matter of K.L.J., 813 P.2d at 279 (quoting Keyes
v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988)).

     22     Patrick v. Lynden Transp., Inc., 765 P.2d 1375,  1378
(Alaska 1988).

     23    See AS 23.30.145.