Alaska Supreme Court Opinions made Available by Touch N' Go Systems and Bright Solutions

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website.
  This site is possible because of the following site sponsors. Please support them with your business.

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Gunter v. Kathy-O-Estates (03/19/2004) sp-5789

Gunter v. Kathy-O-Estates (03/19/2004) sp-5789

     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,


JERRY GUNTER,                                )
                              )    Supreme Court No. S-10931
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3AN-99-12483 CI
                              )    3AN-88-843 P/C
KATHY-O-ESTATES, et al.,           )
                              )    O P I N I O N
             Appellee.                  )
________________________________)  [No. 5789 - March 19, 2004]

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Elaine M. Andrews, Judge.

          Appearances:    Jerry   Gunter,    pro    se,
          Anchorage.  Allan E. Tesche, Russell, Tesche,
          Wagg,   Cooper  &  Gabbert,  Anchorage,   for

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

          CARPENETI, Justice.


          I.   Jerry E. Gunter was permanently and totally disabled by

a  brain  injury  he suffered while working for  Kathy-O-Estates.

Gunter  and  Kathy-O-Estates entered  a  compromise  and  release

agreement  settling  their dispute over Kathy-O-Estatess  workers

compensation  liability due to that injury.  This  case  involves

Gunters  attempt to overturn that agreement.  The superior  court

appointed  the  Community Advocacy Project  of  Alaska,  Inc.  as

Gunters  guardian/conservator and gave it the  power,  which  the

Community  Advocacy  Project then exercised, to  dismiss  Gunters

claims.   Gunter  also  sought reimbursement  for  various  costs

related  to  his brain injury.  These claims were denied  by  the

Alaska  Workers Compensation Board and this denial was upheld  by

the   superior   court.   We  affirm  the   denial   of   Gunters

reimbursement  claims  because the  Alaska  Workers  Compensation

Board  correctly  concluded  that  it  lacked  the  authority  to

reimburse  Gunter  for the financial consequences  of  his  work-

related  injury.   We  affirm the denial of  Gunters  attempt  to

overturn  the  compromise and release because the superior  court

properly  vested Gunters guardian/conservator with the  authority

to dismiss the claim on Gunters behalf.


     A.   Facts

          Jerry  E.  Gunter suffered a severe head  injury  in  a

traffic  accident  on  April 4, 1988 while working  for  Kathy-O-

Estates,  his parents business.  He was permanently  and  totally

disabled  as a result of the accident.  Kathy-O-Estates  and  its

insurer,  Firemans  Fund  Insurance  Company,  were  liable   for

benefits under the Alaska Workers Compensation Act.  The parties1

agreed to settle the workers compensation disputes stemming  from

the injury by entering into a partial Compromise and Release (C &

R).   The C & R provided that Gunter would be paid $175 per  week

for  ten  years and $200 per week after that.  It was  signed  by

both  Gunters guardian and his attorney, and was approved by  the

board on November 18, 1992.

     B.   Proceedings

          A.   Gunter filed a workers compensation claim requesting that

the  board overturn the C & R in July 1998.  The board originally

refused  to allow Gunter to proceed with his claim, ordering  the

Community Advocacy Project of Alaska, Inc. (CAPA) to seek a court-

appointed  guardian  for Gunter.  Gunter  amended  his  complaint

attempting  to overturn the C & R in 1999 and added a  number  of

claims  against  Kathy-O-Estates which have nothing  to  do  with

medical treatment, rehabilitation, or disability benefits.  These

          claims included reimbursement for:  a $500 fine imposed on him

for  disorderly conduct; the costs of court-ordered  alcohol  and

drug  testing and treatment; $500 in unpaid rent by  one  of  his

roommates; $10,000 for theft by a roommate; $4,000 for  a  stolen

watch;  and  $6,000 for one-half of the value of his river  boat.

The  board  concluded  that Gunters claims were  not  compensable

under the Alaska Workers Compensation Act and, consequently, that

it  lacked  authority to impose liability for  them  on  Kathy-O-

Estates.   The  board dismissed and denied all claims.   Superior

Court  Judge  Elaine  M. Andrews affirmed the  boards  denial  of

Gunters   reimbursement  claims  in  February  2002,  citing   as

justification  the reasons stated in [the boards]  decision,  and

based on the analysis contained in [Kathy-O-Estatess] brief.

          The boards December 1999 opinion reaffirmed its earlier

refusal  to allow Gunter to proceed with his attempt to  overturn

the C & R unless he was represented by a court-appointed guardian

or  other competent representative.  In September 2001, after  an

unsuccessful attempt to find counsel willing to represent Gunter,

the     superior    court    appointed    CAPA     as     Gunters

guardian/conservator.  In January 2002 the superior court ordered

the board to dismiss all of Gunters pending claims, including his

challenge  to  the C & R, upon the filing with  the  board  of  a

stipulation by CAPA to dismiss Gunters claims.  CAPA filed such a

stipulation  and  the  board dismissed Gunters  pending  claims.2

Gunter, appearing pro se, appeals these decisions.3


          We independently review the merits of an administrative

boards  decisions  when  the  superior  court  is  acting  as  an

intermediate court of appeal in an administrative matter.4

          We   have  established  that  [i]n  questions  of   law

involving an agencys expertise, a rational basis standard will be

applied and we will defer to the agencys jurisdiction as long  as

it  is reasonable.5  But we will use our independent judgment  in

reviewing  questions  of  law that  do  not  involve  an  agencys

          expertise.6  In applying our independent judgment we will adopt

the  rule  of law that is most persuasive in light of  precedent,

reason, and policy.7

          We  review  the  appointment of a limited  guardian  or

conservator for abuse of discretion.8  We review factual findings

involved in determining whether a guardian or conservator  should

be  appointed  for clear error.9  We decide today  that  we  will

review  a  wards challenge to the dismissal of his or  her  legal

claims  by  a guardian or conservator by determining whether  the

ward presents a colorable legal claim.


     A.   The  Board Was Correct in Deciding that Gunters  Claims
          Seeking Reimbursement for a Court-Imposed Fine, Court-Ordered
          Alcohol Treatment and Testing, Theft, Unpaid Rent, an Interest in
          a Boat, and an Interest in Kathy-O-Estates Are Not Compensable.
          A.   Gunter claims that Kathy-O-Estates should reimburse him for

a  court-imposed  fine  for disorderly  conduct,  related  court-

ordered  alcohol treatment and testing, rent that  his  roommates

failed  to  pay, money and a gold watch allegedly stolen  by  his

roommates, and a half-interest in a boat that he transferred to a

mechanic because he was unable to maintain the boat on his own.10

He contends that Kathy-O-Estates should be held liable for all of

these costs because none of them would have been incurred if  his

brain  had  not  been  injured in his work-related  accident;  he

states  that  [m]y brain is broke in half from  work.   Therefore

[Kathy-O-Estates] is responsible for everything that I do or what

happen[s]  to  me.  Specifically, he contends that he  would  not

have been convicted of disorderly conduct and ordered to pay  the

associated  fine and treatment costs if his brain  had  not  been

injured.   He  also reasons that if he had not been  injured,  he

would  not have been forced to live with roommates, and therefore

would have been spared their alleged thefts.

          The  board found that it had to dismiss Gunters  claims

because  it  lacked  legal  authority  to  award  the  relief  he

requested.   It  noted  that  it had no  authority  over  Gunters

          reimbursement claims because claims for expenses for court-

ordered  alcohol abuse counseling, rent owed due  from  a  former

roommate, thefts and damage by another roommate, alcohol and drug

testing,  .  . . one-half the value of a boat, and a stolen  gold

watch  are  either criminal matters or claims for  general  civil

damages,  not  claims  under specific provisions  of  the  Alaska

Workers  Compensation Act.  The board was correct  in  concluding

that  it  can  only adjudicate a dispute if the  legislature  has

granted  it  adjudicatory authority.11   Therefore, we  determine

this  issue  by  examining whether the board had  authority  over

Gunters claims.  We find it unnecessary separately to address the

issue  whether  the  board correctly determined  that  it  lacked

jurisdiction to interfere with criminal sanctions and  penalties.

Instead,  we  affirm  the  boards dismissal  of  all  of  Gunters

reimbursement  claims because those claims  are  not  compensable

under the workers compensation act.12

          The  board was created by the act and its authority  is

limited  to  the  powers  and duties prescribed  by  that  act.13

Therefore, the board was empowered to grant Gunters reimbursement

claims  only if his claims were compensable under the  act.   The

workers  compensation  act provides that employers  are  strictly

liable   to   their  injured  employees  for  medical  treatment,

rehabilitation, and disability benefits.14  Gunters reimbursement

claims    do   not   involve   issues   of   medical   treatment,

rehabilitation, or disability benefits.15  Because the  board  is

empowered  to provide compensation under the act and because  the

act  does not provide a means of compensating employees  for  the

remote  consequences of their injuries, such as those  for  which

Gunter  seeks  reimbursement, the board was correct  in  deciding

that  it  did  not have the authority to grant Gunters  requested


          To  the  extent  that Gunter was seeking  reimbursement

outside  of  the  structure provided by the workers  compensation

act,  the  board  was  correct that the act   immunized  Kathy-O-

          Estates from such civil liability.  The act generally provides

the  exclusive  remedy  for  injured employees:   Alaska  Statute

23.30.05516  establishes that an employers  workers  compensation

liability, which the employer must pay irrespective of fault,  is

the exclusive remedy for an employee injured during the course of

employment.17  This limited workers compensation remedy was  made

exclusive for the benefit of both employers and employees:

          The  exclusiveness of the remedy  reflects  a
          quid   pro   quo  exchange  of   rights   and
          liabilities  for both workers and  employers.
          Workers  gain an assured remedy  without  the
          burden  of proving fault, but lose the  right
          to  sue  their  employers in tort.  Employers
          gain relief from large tort damage awards and
          enjoy  an  absolute limit on liability  under
          the  Act,  but are liable without  fault  for
          injuries covered under the Act.[18]
The  remedy  provided  by  the act is  exclusive,  and  employees

generally  cannot  obtain  compensation  outside  of  the  system

provided  by  the act.  Because Kathy-O-Estates provided  workers

compensation benefits, the board was correct that Kathy-O-Estates

is  immune  from Gunters claims seeking to impose  general  civil

liability on it.  Kathy-O-Estates is only liable for the benefits

provided   by   the   act  because  Kathy-O-Estates   is   paying

compensation pursuant to AS 23.30.055 under the C &  R.   Gunters

claims  are  not  compensable because the limited  and  exclusive

nature  of  workers compensation benefits precludes  Gunter  from

pursuing  any  claims  for  compensation  beyond  the  wage-based

compensation provided by the act.

     B.   The Superior Court Did Not Err in Allowing CAPA To Dismiss
          Gunters Attempt To Overturn the C & R that Governed Kathy-O-
          Estatess Workers Compensation Obligation to Him.
          A.   Gunter also challenges the 1992 C & R in which the parties

agreed  that Kathy-O-Estates would pay Gunter $175 per  week  for

ten  years  and $200 per week after that.  Gunter filed  a  claim

seeking  to  overturn  the  C & R on July  8,  1998.   The  board

initially determined, based on the opinion of Dr. Paul L.  Craig,

that Gunter was not competent to represent himself in seeking  to

          overturn the C & R.  It postponed ruling on Gunters attempt to

overturn  the  C & R because CAPA was attempting, pursuant  to  a

superior court order, to find an attorney to represent Gunter  in

the  matter.  CAPA was unable to find an attorney willing to take

Gunters  case, and the superior court appointed CAPA  as  Gunters

guardian/conservator  to  provide  legally   trained   staff   to

informally advise and assist Gunter in [these] proceedings.   The

superior  court ordered the board to dismiss all pending  claims,

including  Gunters  challenge to the C  &  R,  if  CAPA  filed  a

stipulation to that effect.  This stipulation was filed  and  the

board  dismissed  Gunters pending claims.19  Gunter  appeals  the

superior courts dismissal of his challenge to the C & R, and,  by

implication,  the  superior  courts decision  allowing  CAPA,  as

Gunters  guardian/conservator, to stipulate to the  dismissal  of

Gunters challenge to the C & R.

          We must analyze Gunters appeal in light of the superior

court  order  denying Gunter the power to challenge  the  C  &  R

without  the  assistance of counsel or his  guardian/conservator.

The  order  would  appear to prevent Gunter  from  pursuing  this

appeal.   But  we recognize that a ward must have some  means  of

contesting  legal  decisions made by his  or  her  guardian.   We

conclude  that  we should review a wards appeal  of  a  tribunals

dismissal  of  his  or  her  case  pursuant  to  a  guardians  or

conservators decision to dismiss the case by determining  whether

the ward presents a colorable, or plausible, claim.20  If the ward

presents such a claim, we will appoint counsel to assist the ward

in pursuing it.  In this case, we would appoint counsel to assist

Gunter  in pursuing his challenge to the C & R if he presented  a

colorable  claim that the superior court should not have  allowed

CAPA  to  dismiss his attempt to overturn the C &  R.   Upon  our

review  of the record, we conclude that Gunters challenge to  the

dismissal of the C & R is not colorable.21

          In  examining  Gunters appeal of the dismissal  of  his

challenge to the C & R, the key question is whether the  superior

          court erred by granting CAPA the authority to dismiss Gunters

claims.    We   have   established  that  a  properly   appointed

conservator  has  the  authority to settle  a  lawsuit  under  AS

13.26.280(c)(19).22   Therefore,  CAPAs  dismissal   of   Gunters

challenge  to the C & R can be challenged on only two grounds  on

appeal:    (1)   that   CAPA   was   improperly   appointed    as

guardian/conservator   with  authority   over   Gunters   workers

compensation  claims or (2) that CAPAs actions were unreasonable.

Because CAPA was properly appointed as guardian/conservator  over

Gunters  claims and because CAPAs actions with respect  to  those

claims   were  reasonable,  Gunter  does  not  have  a  plausible

challenge  to  the  superior courts decision  granting  CAPA  the

authority  to dismiss Gunters claims and the resulting  dismissal

of those claims.

          1.   CAPA was properly appointed as Gunters guardian/conservator
               with authority over his claims seeking to overturn the C & R.
          Gunter   has   a  long  history  of  guardianship   and

conservatorship  proceedings,  and  the  superior  courts   order

appointing  a  guardian/conservator in September 2001  relies  on

that    history.    Though   guardianship   and   conservatorship

proceedings  are  quite  similar,  there  are  separate  statutes

governing  each  appointment.  Alaska  Statute  13.26.165,  which

governs the appointment of conservators, provides that:

          [u]pon  petition and after notice and hearing
          in  accordance  with  the  provisions  of  AS
          13.26.165-13.26.315, the court may appoint  a
          conservator  or  make other protective  order
          for cause as follows:
          . . . .
          (2)  appointment  of a conservator  or  other
          protective  order may be made in relation  to
          the  estate  and affairs of a person  if  the
          court determines that
               (A)  the person is unable to manage  the
          persons property and affairs effectively  for
          reasons   such  as  mental  illness,   mental
          deficiency, physical illness or disability  .
          . . and
               (B)  the person has property which  will
          be   wasted   or  dissipated  unless   proper
          management is provided . . .
Likewise,  AS  13.26.113(e),  which governs  the  appointment  of

guardians, provides that after a hearing,

          [i]f  it is found that the respondent is able
          to   perform  some,  but  not  all  functions
          necessary  to  care for the  respondent,  and
          alternatives to guardianship are not feasible
          or  adequate to provide for the needs of  the
          respondent, the court may appoint  a  partial
          guardian,   but  may  not  appoint   a   full
The  partial  guardians authority is limited to  the  powers  and

duties respecting the ward enumerated in the court order.23

          It  is apparent from the record that CAPAs authority to

dismiss  Gunters  claims for him was properly  established  in  a

manner   that   protected  Gunters  rights   under   either   the

guardianship or conservatorship statutes.  In its September  2001

order,  the superior court modified Gunters existing guardianship

order     to    make    CAPA    Gunters    temporary,     partial

guardian/conservator [f]or the purposes of advising and assisting

Mr.  Gunter in all administrative proceedings before the [board].

The  superior court order specifically granted CAPA the authority

to  allow  those  proceedings to continue, engage  in  settlement

negotiations and enter into binding settlement agreements on  Mr.

Gunters behalf, or dismiss those actions on behalf of Mr.  Gunter

where  CAPA determines that such action is in his best interests.

The   superior  court  held  a  hearing,  at  which  Gunter   was

represented  by  an  attorney and had the  benefit  of  a  court-

appointed visitor.24  The superior court based its appointment of

CAPA,  for  the  limited  purpose of protecting  Gunters  workers

compensation benefits, on the complexity of these proceedings and

the severity of Mr. Gunters injury.  The determination that these

proceedings were too complex for Gunter to manage on  account  of

his brain injury is supported by a significant amount of evidence

establishing  the  severity of Gunters  injury.   Gunter  himself

establishes that his injury has left him unable to understand the

C  &  R, stating that [a]ll I understand about [the] compensation

rate  is  work  me  for  life.   I have  not  understood  at  all

          compensation rate.  The superior court cannot be said to have

committ[ed]  clear error in accepting the evidence as  clear  and

convincing  proof of [Gunters] inability to manage  his  property

and  affairs effectively.25  Accordingly, the superior court  did

not  abuse  its discretion in appointing CAPA to protect  Gunters

workers  compensation  benefits.26  Therefore,  Gunter  does  not

present  a  colorable  claim that the  superior  court  erred  by

granting CAPA the authority to dismiss Gunters challenge to the C

& R.

          2.   CAPA acted reasonably by dismissing Gunters claims
               attempting to overturn the C & R.
          The  superior  courts  approval of  CAPAs  decision  to

dismiss Gunters claims also does not present a colorable claim of

error    because   CAPAs   decision   was   reasonable.     After

unsuccessfully  attempting to secure representation  for  Gunter,

CAPA stated in a report to the superior court that

          [t]he  fact that no attorney seems interested
          in  representing Mr. Gunter in this matter is
          evidence that this appeal may be unlikely  to
          bring  sufficient financial  benefit  to  Mr.
          Gunter to justify the expense of pursuing it.
               If  Mr.  Gunter is successful in setting
          aside  the compromise[] and release, he  runs
          the risk that the ultimate decision could  be
          the  same  or  even  less than  he  has  been
          receiving  under  the settlement.   For  this
          appeal  to  benefit him, he must  prevail  in
          setting  aside  the agreement  and  then  win
          substantially  more.   This  result   appears
CAPA  appears to be correct that Gunter faced a very real  threat

that he would receive a lesser award if the C & R was overturned,

as Kathy-O-Estates originally claimed that Gunter was entitled to

compensation  of only $74.99 per week, a claim that was  probably

correct.    Kathy-O-Estates  eventually  agreed  to  the   weekly

compensation rate of $175 to $200 per week specified in the  C  &

R.   The  reasonableness of CAPAs decision is supported by  CAPAs

inability  to find a lawyer to represent Gunter on a  contingency

basis.  CAPA was also correct in noting, as discussed above, that

it  was  highly unlikely that Gunter would succeed in  his  novel

attempt  to gain compensation for the inheritance he believes  he

would  have received but for his injury.  We hold that CAPA acted

reasonably  in  exercising  its  authority  to  dismiss   Gunters

challenge to the C & R.  Therefore, we hold that Gunter does  not

have  a colorable claim that the superior court erred by allowing

the dismissal of his challenge to the C & R.


          We  hold  that  the  board did not  err  in  dismissing
Gunters  claims  seeking reimbursement for the alleged  financial
consequences of his brain injury and that the superior court  did
not  err  by allowing CAPA to dismiss Gunters attempt to overturn
the C & R.  The decisions of the board and the superior court are
accordingly AFFIRMED.
     1     The Alaska Workers Compensation Board was added  as  a
party,  but declined to participate because it has no independent
interest in this case.

     2     Gunter  v. Kathy-O-Estates, AWCB Decision No.  02-0054
(March 27, 2002).

     3    The superior court also ordered the board not to accept
any  future  claims, applications, or petitions by Gunter  unless
they  were filed through Gunters counsel or guardian/conservator.
Gunter has not challenged this ruling.

     4     Dougan v. Aurora Elec. Inc., 50 P.3d 789, 793  (Alaska

     5    Id.

     6     Id.   But  cf.  Palmer v. Municipality  of  Anchorage,
Police  &  Fire  Ret.  Bd., 65 P.3d 832, 837  n.7  (Alaska  2003)
(noting  that [e]ven under the independent judgment  standard  we
[g]ive some weight to what the agency has done, especially  where
the  agency  interpretation is longstanding.   (quoting  Usibelli
Coal  Mine,  Inc. v. State, Dept of Natural Res., 921  P2d  1134,
1142-43 (Alaska 1996))).

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

     8     See  H.C.S. v. Cmty. Advocacy Project of Alaska, Inc.,
42  P.3d 1093, 1096 (Alaska 2002).  But see In re S.H., 987  P.2d
735, 738-41 (Alaska 1999) (applying clearly erroneous standard to
determine whether it was appropriate to appoint conservator).

     9    See In re S.H., 987 P.2d at 738-41.

     10     Gunter  also  appears to seek reimbursement  for  the
entire value of Kathy-O-Estates, which he contends he would  have
inherited  but  for his brain injury, stating that  [b]ecause  of
this  work  accident  I  lost  Kathy-O-Estates  Inc.   4  million
[dollars]  &  happy  life.  We decline to address  this  argument
because the claim was not raised before the board or the superior
court.   See  Reid v. Williams, 964 P.2d 453, 456  (Alaska  1998)
(noting  that we will not ordinarily consider issues unless  they
were raised in the trial court).

     11    See Far N. Sanitation, Inc. v. Alaska Pub. Util. Commn,
825  P.2d  867, 871 n.5 & 873 (Alaska 1992) (holding that  agency
does  not  have  powers  beyond those  which  are  authorized  by
legislative  grant,  express or implied).   See  also  Blanas  v.
Brower  Co.,  938  P.2d 1056, 1061 (Alaska  1997)  (quoting  with
approval   idea   that  a  public  service   commission   is   an
administrative  agency created by statute  and  as  such  has  no
inherent powers, but only such as have been expressly granted  to
it  by  the  legislature or have, by implication, been  conferred
upon  it as necessarily incident to the exercise of those  powers
expressly  granted) (quoting Greater Anchorage  Area  Borough  v.
City of Anchorage, 504 P.2d 1027, 1033 n.19 (Alaska 1972)).

     12    AS 23.30.

     13    See AS 23.30.005.

     14    AS 23.30.045(a)-(b) (citing AS 23.30.041, which governs
liability  for  rehabilitation, AS 23.30.050  and  AS  23.30.095,
which  govern  liability for medical costs, AS  23.30.145,  which
governs  liability  for legal costs, and AS  23.30.180-23.30.215,
which govern liability for death and disability benefits).

     15     The  board has jurisdiction to grant permanent  total
disability  benefits  under  AS 23.30.180,  which  provides  that
employees  can  only  be  compensated for their  permanent  total
disabilities with a percentage of their weekly wages:  [i]n  case
of  total disability adjudged to be permanent 80 percent  of  the
injured  employees spendable weekly wages shall be  paid  to  the
employee  during  the continuance of the total  disability.   The
method for calculating the employees spendable weekly wage is set
out  in  AS  23.30.220(a), which provides in relevant  part  that
[c]omputation 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.   As  these
statutes make clear, the Alaska Workers Compensation Act attempts
to  replace  an employees lost wage-based income.   It  does  not
provide  an  employee with benefits covering any future  expenses
that might conceivably have some relation to his or her injuries,
such as those for which Gunter now seeks compensation.

     16    Alaska Statute 23.30.055 provides in relevant part that

          [t]he liability of an employer prescribed  in
          AS 23.30.055 is exclusive and in place of all
          other  liability  of  the  employer  and  any
          fellow  employee  to  the  employee.  .  .  .
          However,  if  an  employer  fails  to  secure
          payment  of compensation as required by  this
          chapter, an injured employee or the employees
          legal  representative in case  death  results
          from   the   injury  may   elect   to   claim
          compensation  under  this  chapter,   or   to
          maintain  an  action against the employer  in
          law  or  admiralty for damages on account  of
          the injury or death.
     17     Fenner v. Municipality of Anchorage, 53 P.3d 573, 575
(Alaska 2002).

     18    Suh v. Pingo Corp., 736 P.2d 342, 344 (Alaska 1987).

     19     Gunter v. Kathy-O-Estates, AWCB Decision No.  02-0054
(March 27, 2002).

     20    A wards challenge to a guardians decision is analogous
to   an  indigent  defendants  challenge  to  appointed  counsels
determination that the defendant does not have a colorable  claim
for   post-conviction  relief.   See  Alaska  Rule  of   Criminal
Procedure 35.1.  In the event that an appointed attorney believes
that his or her clients application for post-conviction relief is
completely  without  merit,  Rule 35.1(e)(2)  provides  that  the
attorney may:

          file   with  the  court  and  serve  on   the
          prosecuting attorney
          . . . .
          (B) a certificate that counsel
               (i)   does   not  have  a  conflict   of
               (ii) has completed a review of the facts
          and  law  in  the  underlying  proceeding  or
          action challenged in the application;
               (iii)  has  consulted with the applicant
          and, if appropriate, with trial counsel; and
               (iv) has determined that the application
          does not allege a colorable claim for relief.
Rule  35.1(f)(2) provides that the appellate court must review  a
certificate filed under Rule 35.1(e)(2)(B) and permit counsel  to
withdraw and order the application dismissed if the applicant has
no colorable claim for post-conviction relief or fails to respond
to the certificate.

     21     The  procedural  posture of  this  case  is  somewhat
unusual.   Only  final  judgments may  be  appealed.   Here,  the
superior court remanded an administrative appeal to an agency for
further  proceedings.  A remand order is not  a  final  judgment.
City  and  Borough of Juneau v. Thibodeau, 595 P.2d  626  (Alaska
1979).    (Moreover, Gunter, who is pro se, did  not  appeal  the
boards  dismissal of Gunters claims to the superior court.)   But
rather  than  dismiss  Gunters appeal  on  the  ground  that  the
superior court remanded the case to the administrative agency, we
treat it as a petition for review because Gunters injury poses  a
severe hardship in his efforts to navigate the court system.  See
Muncipality  of Anchorage v. Anderson, 37 P.3d 420,  421  (Alaska
2001)  (stating  that we will treat an appeal improperly  brought
from  a  non-final  order as a petition for review  in  order  to
prevent  hardship and injustice  (quoting Thibodeau, 595 P.2d  at

     22     In  re S.H., 987 P.2d 735, 739 (Alaska 1999).  Alaska
Statute 13.26.280(c) requires that a conservator must be properly
appointed and that the conservators actions must be reasonable in
order to settle a lawsuit for his or her ward:

          [a] conservator, acting reasonably in efforts
          to  accomplish  the  purpose  for  which  the
          conservator  was appointed, may act,  without
          court authorization or confirmation, to
          . . . .
          (19)  pay  or contest any claim; to settle  a
          claim  by  or  against  the  estate  or   the
          protected  person by compromise, arbitration,
          or  otherwise; and to release, in whole or in
          part,  any  claim belonging to the estate  to
          the extent that the claim is uncollectible.
     23    AS 13.26.150(b).

     24     The  court must appoint a visitor to investigate  the
prospective wards incapacity and evaluate whether the prospective
ward needs a guardian.  AS 13.26.106(c); AS 13.26.108.

     25    In re S.H., 987 P.2d at 741.

     26     See H.C.S. v. Cmty. Advocacy Project of Alaska, Inc.,
42 P.3d 1093, 1096 (Alaska 2002).