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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Griffiths v. Andy's Body & Frame, Inc. (08/17/2007) sp-6146

Griffiths v. Andy's Body & Frame, Inc. (08/17/2007) sp-6146, 165 P3d 619

     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,


) Supreme Court No. S- 12252
) Superior Court No.
v. ) 3AN-05-8049 CI
INSURANCE COMPANY, ) No. 6146 August 17, 2007
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Daniel J. Schally, Judge.

          Appearances: Burt Mason, Law Offices of  Burt
          Mason,  Eagle River, for Appellant.   Theresa
          Hennemann,  Holmes Weddle  &  Barcott,  P.C.,
          Anchorage, for Appellees.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Bryner, Justices.  [Carpeneti,
          Justice, not participating.]

          BRYNER, Justice.

          Robert  Griffiths  worked as  an  auto  body  repairman
before  developing hand and wrist symptoms that made it difficult
for  him  to  work.   He  filed  an  injury  report  and  workers
compensation  claim  for carpal tunnel syndrome  in  2001and  had
surgery on both hands.  Griffiths applied and was initially found
eligible  for  reemployment  benefits,  but  his  employer  later
petitioned  to  modify this eligibility determination.   After  a
hearing,  the  board ruled that Griffiths was no longer  eligible
for benefits because his employers medical examiner had found  no
permanent  partial  impairment (PPI).  The  boards  decision  and
order  nonetheless advised Griffiths that he  could  seek  a  PPI
rating of his own and then ask the board to modify its ruling  if
the   rating  established  a  permanent  impairment.    Griffiths
obtained a favorable rating and petitioned for modification.  But
the  board  dismissed  his petition, ruling  that  Griffiths  had
inexcusably failed to submit an affidavit establishing that, with
due  diligence, he could not have obtained his PPI rating in time
for  the  boards prior hearing.  The superior court affirmed  the
boards  ruling on this point. We now reverse.  Because the  board
told Griffiths in its earlier decision that he could get his  own
expert PPI rating and then ask for modification, Griffiths  could
reasonably  expect  that  he had no need  to  file  an  affidavit
establishing  due  diligence if he obtained the  new  rating  and
sought  modification within the one-year period normally  allowed
for filing a petition for modification.
          Robert  Griffiths worked most of his adult life  as  an
auto body repairman; he was employed at Andys Body & Frame, Inc.,
for   approximately  five  years  before  he  filed   a   workers
compensation claim for hand pain.  He was diagnosed  with  carpal
tunnel  syndrome and on September 18, 2001, had  surgery  on  his
left  hand to treat it.  His physician released him to return  to
work  on November 26, 2001, with the restriction that he not  use
vibratory   tools.   Griffiths  first  applied  for  reemployment
benefits  on January 7, 2002.  A workers compensation  technician
denied his application on January 25, 2002, because his physician
had released him to work.
          Griffiths moved to California during the winter of 2001-
2002  because his wife was being treated there for cancer.  While
in  California Griffiths had surgery on his right hand to relieve
his carpal tunnel complaints.  On April 23, 2002, Alaska National
Insurance Company, Andys Bodys insurer,1 requested that Griffiths
be  referred  for  an  eligibility  evaluation  for  reemployment
benefits  because it had received a medical report  showing  that
Griffiths  could no longer work as an auto body  repairman.   The
Alaska  Workers Compensation Division referred Griffiths  for  an
eligibility evaluation on May 24, 2002.  On August 22, 2002,  his
physician in California, Dr. Elise Smith-Hoefer, wrote  that  any
future  jobs  Griffiths  held  should  have  limits  on  lifting,
pushing,  pulling, grasping, and twisting.  She also stated  that
he   could  not  return  to  his  former  employment  and  needed
          On  September 16, 2002, Dr. Smith-Hoefer wrote to Andys
Body  that Griffiths was medically stable as of August 22,  2002,
but that she could not provide a PPI rating because she was not a
qualified  medical  evaluator.  Also on  September  16,  2002,  a
reemployment benefits administrator (RBA) with the Alaska Workers
Compensation  Division  notified Andys Body  and  Griffiths  that
Griffiths was eligible for reemployment benefits.  Andys Body had
thirteen days to request a hearing, but it failed to contest  the
determination.   The  RBAs decision became final,  and  Griffiths
elected to receive reemployment benefits.
          Andys  Body arranged to have Dr. Clifton Baker evaluate
Griffiths  for  a  PPI rating on November 16,  2002.   Dr.  Baker
determined  that  Griffiths probably should  not  return  to  his
former job as an auto body repairman, that he had reached medical
stability, and that he had a one percent impairment of the  right
hand,  which, Dr. Baker concluded, would be equivalent to a  zero
percent  whole  person  impairment  under  the  American  Medical
Association  Guides  to  the Evaluation of Permanent  Impairment,
Fifth  Edition.  Andys Body then sent a copy of Dr. Bakers report
to  Dr.  Smith-Hoefer, who responded that she concurred with  Dr.
Bakers  conclusion, [p]articularly that he should not  return  to
his previous job.
          On  February 20, 2003, Andys Body filed a petition  for
modification of the reemployment eligibility determination  based
on  Dr.  Bakers  report and Dr. Smith-Hoefers  concurrence.   The
Alaska Workers Compensation Board held a hearing on May 13, 2003;
Griffiths represented himself at the hearing.  On June  6,  2003,
the  board issued a decision and order in which it found that the
only  PPI rating in the record  Dr. Bakers  showed that Griffiths
had  a zero percent whole person impairment under the AMA Guides.
Based  on Rydwell v. Anchorage School District,2 the board  ruled
that  Griffiths was no longer eligible for reemployment  benefits
even  though all physicians who evaluated him concluded  that  he
could  not  return  to his regular work.  The board  nevertheless
qualified  this ruling by observing that Griffiths  would  remain
free  to  seek  a PPI rating from his own treating physician  and
could  move  to modify the boards ruling if that rating  differed
from Dr. Bakers:
          Nonetheless,  we note that the  employee  has
          never  been  actually rated by  his  treating
          physicians.   As  the  employee  points  out,
          neither  of his surgical physicians  performs
          impairment  ratings.  There is  certainly  no
          prohibition barring the employee  to  seek  a
          referral  from  an attending physician  to  a
          physician  who  may provide a rating  with  a
          different  result  than that  of  Dr.  Baker.
          Should   the   employee  receive   a   rating
          indicating   he   does   have   a   permanent
          impairment,  he  may seek modification  under
          the provisions of AS 23.30.130 . . . .[3]
          Almost  nine months later, on March 16, 2004, Griffiths
petitioned  to modify the June 6, 2003, decision and  order.   In
his  petition,  which he filed pro se, Griffiths stated  that  he
sought to toll statute of limitations as I need further treatment
&  Ive  never  had  a PPI [r]ating.  On April 1, 2004,  Griffiths
filed  a change-of-attending-physician form designating Dr.  John
Troxel  as his new physician.  Dr. Troxel then referred Griffiths
to Dr. Larry Levine for a PPI rating on May 11, 2004.
          Dr.  Levine  concluded  that Griffiths  had  a  fifteen
percent  whole  person impairment based on his testing.   In  the
meantime,  on  April  5, 2004, Andys Body had  moved  to  dismiss
Griffithss  petition  for  modification,  alleging  that  it  was
untimely.   Specifically,  Andys Body  contended  that  Griffiths
          should have filed the petition within a year of the September 16,
2002  RBA  letter finding him eligible for benefits.  Andys  Body
also  argued that Griffithss petition failed to state any  ground
for modification.
          Soon after Andys Body moved to dismiss his petition for
modification, Griffiths for the first time retained an  attorney;
his  attorney entered an appearance on May 6, 2004.  On  June  2,
2004,  Griffithss  attorney petitioned to  amend  and  supplement
Griffithss  March  16  petition for  modification.   The  amended
petition explained:
          There are no new medical records available to
          the  [e]mployee,  however a  PPI  rating  was
          performed  by Dr. Larry Levine in May,  2004,
          and  has  been  or will be forwarded  to  the
          carrier.  It is anticipated that this  record
          will  not be filed until after the year after
          the  above  referenced D&O,  but  it  is  the
          foundation of this Petition.  As the [d]octor
          did   find  a  ratable  PPI,  the  issue   of
          eligibility   for   retraining   should    be
          revisited by the Board after the parties have
          accumulated the evidence necessary to put  on
          a [h]earing.
By  the time Griffiths filed his petition, Dr. Levine had written
a  report  summarizing his findings, but no one had  received  it
yet.  Although Griffithss petition relied on the findings of  Dr.
Levine,  Griffiths  was unable to attach a copy  of  Dr.  Levines
report because it was not yet available to him.
          Andys  Body  answered  Griffithss amended  petition  by
reasserting  that the petition was not timely because  it  should
have  been filed before September 16, 2003, a year after the  RBA
determined  that  Griffiths  was eligible  to  receive  benefits.
Andys  Bodys answer did not raise any other procedural objections
to the amended petition.  The parties then stipulated to continue
the  hearing  on  Griffithss petition, which had originally  been
scheduled  for  July  8, 2004.  Andys Body subsequently  filed  a
controversion notice in which the only issues it raised were  its
continued  reliance on Dr. Bakers PPI rating and its  not  having
received  a copy of Dr. Levines report by that time.   On  August
24, 2004, Griffiths filed a medical summary form with information
about Dr. Levines report.  Andys Body requested cross-examination
of  Dr.  Levine and eventually held a deposition to preserve  his
          The  workers  compensation  board  held  a  hearing  on
Griffithss  petition  to modify on April  5,  2005.   Dr.  Levine
testified  via his deposition.  No other witnesses testified,  so
the hearing consisted only of argument.  Andys Body did not argue
that  Griffithss petition was filed too late; instead, it  argued
for the first time that Griffiths should have obtained his expert
PPI  rating  before  the  hearing in May 2003,  when  Andys  Body
presented  Dr.  Bakers report that Griffiths had a  zero  percent
whole person impairment.
          The  board  issued its decision and order on Griffithss
petition  for  modification  on April  28,  2005.   The  decision
dismissed Griffithss petition as untimely, ruling that it  should
have  been filed by September 16, 2003  that is, within one  year
of  the  RBAs  September  16, 2002, finding  that  Griffiths  was
eligible  for reemployment benefits.  In effect, this would  have
required Griffiths to file the petition a little more than  three
months after the board granted Andys Bodys petition to modify the
RBAs determination.  The board alternatively decided that even if
the  petition  itself was timely, it was fatally  flawed  because
Griffiths  failed  to  submit  an affidavit  in  accordance  with
8  Alaska Administrative Code (AAC) 45.150(d) explaining why  due
diligence would not have enabled Griffiths to obtain Dr.  Levines
PPI  rating for the May 2003 hearing, at which the board  revoked
Griffithss reemployment benefits in light of Dr. Bakers zero  PPI
          Griffiths   appealed  to  the  superior  court,   which
reversed  the boards ruling on the timeliness issue but  affirmed
on  the  boards alternate ground for dismissal: that the petition
failed  to  include  an  affidavit of  due  diligence  explaining
Griffithss failure to obtain Dr. Levines PPI rating in  time  for
the May 2003 hearing.
          Griffiths appeals.
     A.   Standard of Review
          On  appeal from the decision of a superior court acting
as  an  intermediate court of appeal in an administrative matter,
we  directly review the agencys ruling.4  The scope of review for
an  agencys  application of its own regulations to the  facts  is
limited   to   whether  the  agencys  decision   was   arbitrary,
unreasonable, or an abuse of discretion.5
     B.   Denial of the Petition for Modification
          Alaska   Statute   23.30.130(a)  allows   the   workers
compensation board to modify a previous decision based on changed
conditions  or  a mistake of a fact.  The board  may  modify  the
prior  decision on its own initiative or upon application  by  an
interested  party  so  long as the boards review  process  begins
within  one  year  of  the last payment of  compensation  or  the
rejection of the claim.6
          The procedures for initiating a modification proceeding
are  set  out  by  regulation; in relevant  part,  8  AAC  45.150
               (d)   A  petition  for  a  rehearing  or
          modification based on an alleged  mistake  of
          fact  by  the board must set out specifically
          and in detail
                    (1)    the  facts  upon  which  the
          original award was based;
                    (2)    the  facts  alleged  to   be
          erroneous,  the  evidence in support  of  the
          allegations of mistake, and, if a  party  has
          newly discovered evidence, an affidavit  from
          the   party   or  the  partys  representative
                    stating the reason why, with due diligence,
          the  newly discovered evidence supporting the
          allegation could not have been discovered and
          produced at the time of the hearing; and
                    (3)   the effect that a finding  of
          the  alleged  mistake  would  have  upon  the
          existing board order or award.[7]
          Here,  the  board  determined that Griffithss  petition
violated the requirements of 8 AAC 45.150(d)(2) by failing to set
out  in specific detail why, with due diligence, Dr. Levines  PPI
rating  could not have been discovered and produced for  the  May
2003  hearing at which Andys Body produced Dr. Bakers PPI  rating
that showed Griffiths to be ineligible for reemployment benefits.
          Griffiths contends that the board abused its discretion
by denying his petition for failing to include a statement of due
diligence as required under 8 AAC 45.150(d).8  He points out that
the  boards June 2003 decision and order expressly provided that,
[s]hould the employee receive a rating indicating he does have  a
permanent   impairment,  he  may  seek  modification   under   AS
23.30.130.    As   Griffiths  understands  this   statement,   it
authorized  him to seek modification if he obtained  a  favorable
PPI  rating  and initiated a modification proceeding  within  one
year  of  the  June 2003 decision and order, in  accordance  with
AS  23.30.130.   Because  his petition  complied  with  the  2003
decision and orders instructions, Griffiths insists that he acted
with  due  diligence  and  had no need  to  provide  any  further
          Griffiths  further contends that Dr. Levines  testimony
established that Griffiths was not medically stable before seeing
Dr.  Levine,  so he could not have produced a PPI rating  sooner.
Griffiths  also points out that in 2003 the board  granted  Andys
Bodys  petition  and  modified  the RBAs  original  determination
granting benefits yet did not require Andys Body to include a due
diligence  statement  in  its petition  or  to  produce  evidence
explaining  its  failure to produce Dr. Bakers  zero  PPI  rating
sooner.   Given these circumstances, Griffiths insists  that  the
boards reliance on 8 AAC 45.150(d) to disqualify his petition was
clearly an abuse of discretion.
          We  agree  with  Griffiths that the  board  abused  its
discretion in dismissing his petition for failing to comply  with
8  AAC  45.150(d).   When  the board issued  its  2003  decision,
Griffiths  was  representing himself.  The  boards  decision  and
order  advised  him that nothing prevented him from  obtaining  a
referral  to  a physician for a new PPI rating; the decision  and
order  then  unequivocally declared that  [s]hould  the  employee
receive  a rating indicating he does have a permanent impairment,
he  may  seek modification under the provisions of AS  23.30.130.
We  think  that a reasonable worker in Griffithss position  would
understand  the 2003 decision and order as allowing Griffiths  to
submit a petition for modification within one year based on a new
PPI  rating,  without the need to explain why  greater  diligence
might not have produced an earlier rating.  The reasonableness of
this interpretation seems especially clear in light of the boards
          apparent failure to enforce the due diligence requirement in 2003
when  it  granted Andys Bodys petition for modification based  on
Dr. Bakers unfavorable rating.
          Given the provisions of the 2003 decision and order, we
conclude  that  the  board  abused its  discretion  and  violated
Griffithss reasonable procedural expectations by invoking  8  AAC
45.150(d)  as  a  basis for its decision and  order  denying  his
petition  for modification.  We must therefore vacate the  boards
decision  and  remand  with directions to decide,  based  on  the
evidence  in  the  record upon conclusion of Griffithss  hearing,
whether  Griffiths  had a ratable permanent impairment  entitling
him to reemployment benefits.9
          For  these  reasons, we VACATE the boards decision  and
REMAND  for  a  decision  addressing  the  merits  of  Griffithss
petition, as directed in this opinion.
     1     We  refer  to  Andys  Body & Frame,  Inc.  and  Alaska
National Insurance Company collectively as Andys Body.

     2     Rydwell v. Anchorage Sch. Dist., 864 P.2d 526  (Alaska

     3      AS   23.30.130(a)  requires  that  a   petition   for
modification be filed within one year of rejection of a claim  or
the date of the last payment of compensation.

     4     Handley v. State, Dept of Revenue, 838 P.2d 1231, 1233
(Alaska 1992).

     5     Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960
(Alaska  1998) (citing Rose v. Commercial Fisheries Entry  Commn,
647 P.2d 154, 161 (Alaska 1982)).

     6    AS 23.30.130(a).

     7    8 AAC 45.150(d) (2004).

     8     Andys  Body  has  not challenged the  superior  courts
ruling on the timeliness issue; accordingly there is no need  for
us  to address that point.  Ray v. Ray, 115 P.3d 573, 578 (Alaska

     9     Griffiths separately argues on appeal that  the  board
erred  in  its 2003 decision by relying on Dr. Bakers PPI  rating
because  Dr.  Baker  incorrectly  applied  the   AMA  Guides   in
calculating  the  rating.   The boards  2004  decision  does  not
address  this issue, and our decision remanding the case  to  the
board  makes it unnecessary to decide the issue here.  On remand,
however, the board may allow further argument on the point if  it
believes that the additional argument would be helpful.

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