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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Irby v. Fairbanks Gold Mining, Inc. (03/20/2009) sp-6346

Irby v. Fairbanks Gold Mining, Inc. (03/20/2009) sp-6346, 203 P3d 1138

     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,


EDWARD P. IRBY, Deceased, and )
CARTRIE IRBY, EDWARD P. IRBY II, ) Supreme Court No. S-12680
and HANNAH C. IRBY, Beneficiaries, )
) Superior Court No. 4FA-05- 02288 CI
) O P I N I O N
v. )
) No. 6346 March 20, 2009
CO., )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks,  Randy  M.  Olsen  and  Niesje  J.
          Steinkruger, Judges.

          Appearances: Chancy Croft, Chancy  Croft  Law
          Office, Anchorage, for Appellants.  Constance
          Cates   Ringstad,   McConahy,   Zimmerman   &
          Wallace, Fairbanks, for Appellees.

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

          EASTAUGH, Justice.

          This  appeal  concerns the timeliness of a  March  2004
workers  compensation  claim.   Edward  Irby  disappeared  in  an
apparent  industrial  accident on April  13,  1997.   Irbys  wife
promptly   petitioned  the  Fairbanks  district   court   for   a
presumptive  death certificate, but in October 1997 the  district
court  jury determined there was insufficient evidence to presume
Irby  dead.   In 2003 Irbys son filed a second presumptive  death
petition;  the jury in this second proceeding decided in  October
2003  that  Irby  was  presumed dead in the industrial  accident.
Irbys  widow  filed a workers compensation claim for herself  and
her children in March 2004. The Alaska Workers Compensation Board
rejected  Irbys employers contention that the claim was  untimely
and  awarded  death  benefits.   The  employer  appealed  to  the
superior  court,  which  reversed.  It  held  that  the  one-year
statute  of limitations, AS 23.30.105(a), began running on  April
13,  2002,  when Irby was presumed dead per AS 13.06.035(5),  and
that  the  March  2004  claim was therefore  untimely.   Applying
tolling  principles and because Irbys family acted reasonably  in
pursuing  a presumptive death certificate before filing  a  claim
for  workers  compensation benefits, we hold that the  claim  was
timely  and  remand for reinstatement of the boards decision  and
          Edward  Irby worked as a truck driver at the Fort  Knox
Mine,   operated  by  Fairbanks  Gold  Mining,  Inc.   The  event
resulting  in this workers compensation claim happened about  two
days  after Irby began training to operate a bulldozer.  On April
13, 1997, the bulldozer Irby was operating traveled backward down
a steep slope into a tailing pond and broke through the ice.  The
bulldozer was completely submerged.  No one saw the accident, but
Irbys  shift  supervisor, observing that  Irby  was  not  at  his
assigned  location,  discovered the accident site  shortly  after
Irby was last seen.
          Fairbanks  Gold summoned emergency personnel, including
the  Alaska State Troopers.  Divers from the troopers  went  into
the  pond within two hours of the accident, hoping to find  Irby;
they  were unsuccessful.  After the troopers ended their recovery
efforts,  Fairbanks Gold unsuccessfully continued to  search  for
Irbys   body  throughout  the  summer.   At  the  time   of   his
disappearance, Irby had a wife and two minor children.  Fairbanks
Gold  filed  a  notice of the accident with  the  Alaska  Workers
Compensation  Board  in April 1997; a month  later  the  employer
filed  a  notice  of  controversion, stating that  benefits  were
denied pending further investigation.
           In late May 1997 Irbys wife, Cartrie Irby, invoking AS
09.55.020-.060,  filed  a  presumptive death  petition  in  state
district  court.   After  a  hearing  at  which  eight  witnesses
testified,  a  jury decided in October 1997 that  there  was  not
enough evidence to presume that Irby had died.  In December  1997
Fairbanks Gold filed a second controversion with the board;  this
controversion  relied on the jury verdict.   The  following  year
Cartrie   Irby  contacted  the  workers  compensation   insurance
adjuster  and the board about benefits.  She received conflicting
information  from the board: one staff member told  her  that  it
would  be  premature to file for benefits in light  of  the  jury
verdict,  but  another suggested that the  time  for  filing  had
already expired.
          In  July 2003 Irbys son, Edward II, who was by then  an
adult,  filed a second presumptive death petition.  The  jury  in
that  case decided in October 2003 that Irby was presumed to have
died  on  April  13,  1997 in the Fort Knox Mine  accident.   The
Bureau of Vital Statistics issued a presumptive death certificate
on  November 7, 2003.  Cartrie filed a workers compensation claim
for  death  benefits in March 2004 on behalf of herself  and  her
children.   Fairbanks  Gold  filed an answer  and  controversion,
incorporating its previous controversions and asserting that  the
statute of limitations and laches barred the claim.
          An  attorney  entered an appearance for  the  Irbys  on
March  21, 2005 and soon asked the board to set a hearing on  the
claim.  Fairbanks Gold petitioned the board to dismiss the  claim
based  on  the statute of limitations and laches.  It alleged  in
later pleadings that Irby was still alive and that his dependents
consequently  should  receive no  benefits.   The  board  held  a
hearing  over three days on the petitions and claim.  Applying  a
type  of discovery rule to decide when the statute of limitations
began to run, the board decided that Cartrie had timely filed the
March  2004  workers compensation claim and awarded her  and  the
children benefits as well as attorneys fees and costs.  The board
declined to award the Irbys a penalty for Fairbanks Golds failure
to  pay  benefits  after  the second jury verdict,  finding  that
Fairbanks Gold had not filed its 2004 controversion in bad faith.
          Fairbanks Gold appealed to the superior court, and  the
Irbys  cross-appealed  the denial of a penalty.   Fairbanks  Gold
asked  the  court to stay payment of past benefits and  requested
expedited consideration of the issue.  The superior court  appeal
was  initially  assigned  to Superior  Court  Judge  Pro  Tempore
Raymond  M.  Funk,  who  set an expedited briefing  schedule  and
hearing.  Fairbanks Gold peremptorily challenged Judge Funk,  and
the  case was reassigned to Superior Court Judge Randy M.  Olsen.
The  Irbys filed their opposition to the stay motion on September
22,  2005.   On Friday, September 23, the court faxed  the  Irbys
attorney  notice that a hearing on the motion for stay  would  be
held before Judge Olsen on Monday, September 26 at 10:00 a.m.; it
also  mailed  the  Irbys attorney the notice of  reassignment  to
Judge Olsen.  The Irbys attorney attended and participated in the
hearing on September 26.
          On  September 29 the Irbys filed a peremptory challenge
of Judge Olsen.  Fairbanks Gold objected to the challenge because
of  the  Irbys  participation at the September 26  hearing.   The
Irbys  responded  that  they  had  not  received  the  notice  of
reassignment  to Judge Olsen until after the hearing.   Presiding
Superior  Court  Judge  Niesje J. Steinkruger  denied  the  Irbys
peremptory  challenge,  ruling  that  they  had  waived   it   by
participating in the hearing.
          In  April 2007 Judge Olsen reversed the boards decision
and  dismissed the Irbys cross-appeal.  Applying its  independent
judgment  to the statute of limitations question and  relying  on
Carman  v. Prudential Insurance Co.,1 the superior court  decided
that   the   statute  of  limitations  for  filing  the   workers
compensation  claim, AS 23.30.105(a), began to run on  April  13,
2002,   five  years  after  Irby  disappeared.   At  that  point,
according  to  the court, Irby could be presumed dead  under  the
probate statutes;2 the court reasoned that a party could rely  on
the five-year presumptive death period to establish death without
obtaining  a  certificate.   Because  the  one-year  statute   of
limitations  began to run on April 13, 2002, the  superior  court
concluded that the Irbys March 2004 claim was untimely, and  that
the board should not have awarded benefits.
          The  Irbys  appeal the courts reversal  of  the  boards
award  of benefits and the boards refusal to impose a penalty  on
Fairbanks  Gold.   They also appeal the courts  denial  of  their
peremptory challenge of Judge Olsen.
     A.   Standard of Review
          In  a  workers  compensation appeal from  the  superior
court we directly review the board decision.3  Application of the
relevant statute of limitations is a legal question involving  no
agency  expertise;4  accordingly,  we  substitute  our  judgment,
adopting  the  rule of law that is most persuasive  in  light  of
precedent, reason, and policy.5  The boards factual findings  are
reviewed  to see if they are supported by substantial  evidence.6
Substantial  evidence is such relevant evidence as  a  reasonable
mind  might  accept  as  adequate  to  support  a  conclusion.  7
Interpretation and application of the right to disqualify a judge
under  Alaska  Civil  Rule 42(c) is a question  of  law  that  we
consider de novo.8
     B.   The Irbys Claim Was Timely.
          Per  AS  23.30.105(a), the statute of  limitations  for
filing a claim for death benefits in a workers compensation  case
is  one  year after the death.9  The workers compensation statute
and  its  implementing regulations do not specify the evidence  a
deceased  workers  beneficiaries can use to  prove  death.10   In
addition,  no regulation discusses proof of death in a case  like
this  one,  where  no body has been recovered  and  the  employer
continues to assert that the employee is not in fact dead.
          Fairbanks  Gold  argues that the  one-year  statute  of
limitations on the Irbys death benefits claim ran out  on  either
April  13, 1998  one year after the accident   or April 13,  2003
one  year  after  expiration of the five-year  presumptive  death
period specified in AS 13.06.035(5).  Fairbanks Gold asserts that
the  board could determine that Irby was dead independently of  a
jury  verdict.   The Irbys maintain that their claim  was  timely
because they filed it within one year of the date the second jury
found  that  Irby  was presumed to have died  in  the  industrial
          We  hold that the doctrine of equitable tolling applies
and  that  the Irbys claim was timely.  Use of equitable  tolling
should  come  as  no surprise in the context of an administrative
proceeding.11  We can affirm a judgment on any appropriate basis,
including grounds not relied on or raised in the lower tribunal.12
The  principle that we can affirm on alternative grounds  applies
          only to issues of law that find support in settled facts and does
not  extend  to new theories that would normally be  resolved  by
discretionary  powers  traditionally reserved  for  trial  courts
powers  relying  on case-specific consideration  of  disputed  or
disputable issues of fact.13
           After briefing in this court was completed, the  Irbys
filed  a  citation of supplemental authority per Alaska  Rule  of
Appellate  Procedure  212(c)(12)  to  further  support  equitable
arguments  they  presented to both the  board  and  the  superior
court.   The citations raised equitable tolling as an alternative
basis  for  affirming the boards decision.  Although neither  the
board  nor  the  superior court considered equitable  tolling  in
evaluating  the  Irbys claim, the elements of  equitable  tolling
parallel  the elements of issues directly raised by  the  parties
and   considered  below.   The  Irbys  argued  estoppel  in   the
alternative  before the board and the superior  court;  Fairbanks
Gold raised the issue of prejudice in its defense of  laches  and
in  responding to the Irbys equitable arguments. The employer had
an  opportunity to dispute the Irbys diligence in bringing  their
claim  and  the  reasonableness of the Irbys procedural  choices.
Additionally, the employer litigated the issue of prejudice.  The
board  made  factual findings that serve as the foundation  of  a
legal  ruling  on  equitable  tolling.   The  board  found   that
Fairbanks  Gold had ample, timely opportunity to investigate  and
defend  against  any possible claims by the [Irbys].   Given  the
certainty that the doctrine of equitable tolling is satisfied and
the  absence  of  a  genuine  factual  dispute  material  to  its
application,  we  rely on equitable tolling to affirm  the  board
          We  have previously stated that even though the defense
of statute of limitations is a legitimate defense,14 we look on it
with  disfavor and will strain neither the law nor the  facts  in
its  aid.15   We  have  identified  several  policies  served  by
limitations  periods:  providing defendants with  notice  of  the
nature of adverse claims and barring plaintiffs who have slept on
their rights,16 as well as protecting against prejudice from stale
claims.17   Here,  Fairbanks Gold had notice  of  the  claim:  it
indicated  in  a 1997 letter to its workers compensation  carrier
that  the  first jury verdict stayed Cartries claim for  benefits
and  that the claim would go into excess at some point.  In  1998
its  workers  compensation carrier instructed Fairbanks  Gold  to
leave  a  reserve on that claim. The evidence also suggests  that
the  Irbys did not sleep on their rights.  Cartrie promptly filed
the  first presumptive death petition only seven weeks after  the
accident.  In 1998 Cartrie contacted Fairbanks Gold, the  workers
compensation  adjuster,  and  board staff  seeking  advice  about
pursuing  a  claim for benefits and information about reports  or
other  evidence  related  to the accident.   In  2000  she  again
contacted  Fairbanks  Gold to see if it had any  new  information
about  the  accident.   The  record also  shows  that  the  Irbys
contacted  the  Fairbanks court in 1999 and again in  2002  about
filing  another  presumptive  death petition.   Finally,  nothing
indicates that any evidence became more stale between the running
of  the five-year presumptive death period and the time Edward II
          filed the second presumptive death proceeding.
          Under  the doctrine of equitable tolling, when a  party
has  more  than  one  legal  remedy  available,  the  statute  of
limitations is tolled while the party pursues one of the possible
remedies.18  In Gudenau v. Sweeney Insurance, Inc., we adopted  a
three-part test for equitable tolling: (1) the alternative remedy
must give notice to the defendant; (2) the defendant must not  be
prejudiced; and (3) the plaintiff must have acted reasonably  and
in good faith.19  The initial remedy must be pursued in a judicial
or  quasi-judicial forum.20  A party is generally entitled to the
full  statutory  period  after  the circumstances  which  justify
equitable tolling abate.21
          Because   the   statute  of  limitations   on   workers
compensation  death benefits runs from the time  of  death22  and
because  Fairbanks Gold insisted that Irby was still  alive,  the
Irby  beneficiaries  needed  to establish  a  date  of  death  or
presumed death.23  The alternative legal remedies we discuss  are
different  ways  to  establish the fact of  Irbys  death.   Here,
Cartrie had more than one way to pursue a finding of Irbys death.
To  obtain  a presumptive death certificate from the  state,  she
could either file a presumptive death petition in district court24
or,  after  five  years  had  elapsed,  begin  a  superior  court
proceeding,  presumably  in  probate.25   She  chose  the   first
alternative.  It is less clear whether, without first obtaining a
presumptive  death certificate, she could have  filed  a  workers
compensation  claim with the board and asked  the  board,  rather
than  a court, to determine that Irby had died.  Here, the  board
did not determine that it had exclusive jurisdiction to determine
the  fact  of Irbys death.26  It permitted the Irbys to introduce
the   presumptive  death  certificate  into  evidence  and   gave
Fairbanks Gold the opportunity to present evidence that Irby  was
not  in  fact dead.  Even if the board had jurisdiction  to  find
that Irby was in fact dead (in addition to finding that his death
was  the  result  of an industrial accident), Cartrie  had  other
avenues available to establish that he had died, namely filing  a
presumptive death petition or a probate proceeding.
          We  first  consider  the reasonableness  of  the  Irbys
actions.   Relying on AS 09.55.020-.060, Cartrie initially  chose
to  file  a presumptive death petition in district court  shortly
after  Irbys  disappearance.   Her  actions  were  reasonable:  a
district  court  presumptive death hearing is  the  only  way  to
obtain  a  certificate of presumptive death without waiting  five
years,27 and, given the circumstances of Irbys disappearance,  it
was not unreasonable for her to think that a jury would find that
he had died at the mine.28
          After  the  first  jury decided that the  evidence  was
insufficient to presume that Irby was dead, Fairbanks Gold  filed
its second controversion with the board, specifically relying  on
the jury verdict.  Because the 1997 verdict did not establish the
presumptive  death, and because Fairbanks Gold took the  position
that as a result of that verdict no workers compensation benefits
were  payable, Cartrie cannot be faulted for failing  to  file  a
claim for benefits after the jury returned its 1997 verdict.   In
effect,  given the jurys verdict in 1997, the time  in  which  to
          file a claim was not yet running.29
          In  addition, when Cartrie contacted the board in 1998,
she received conflicting advice.  One staff member suggested that
the  statute  of  limitations had already  run,  while  a  second
indicated that filing for death benefits could be premature.  The
insurance  adjuster offered her no information about  pursuing  a
claim,  even  though she had no attorney at the time.   Based  on
Fairbanks  Golds  controversion and the  conflicting  advice  she
received  from  the board, it was reasonable for Cartrie  not  to
file a workers compensation claim immediately.
          It  was  also reasonable for the Irbys to wait for  the
five-year presumptive death period to pass before taking  further
action.  The parties agree that there was no time limit by  which
the Irbys needed to refile a presumptive death petition.30  Here,
Edward  II filed the second presumptive death petition about  six
years  after  Irbys disappearance. The one-year delay  in  filing
beyond  the  five-year presumptive death period was  not  per  se
unreasonable.   As  we  noted  earlier,  the  Irbys  inquired  of
Fairbanks  Gold and the court during the time between  the  first
jury  verdict  and  the  filing of the second  presumptive  death
          Under  the  doctrine  of equitable tolling,  the  first
proceeding  must give notice to the defendant.31  Fairbanks  Gold
had  ample notice of the circumstances of the accident,  the  two
presumptive death petitions, and the workers compensation  claim.
Fairbanks Gold conducted its own investigation of the accident in
1997  and  had  copies of the investigation of the  Alaska  State
Troopers and the reports of the United States Department of Labor
Mine  Safety  &  Health Administration and the  State  of  Alaska
Occupational   Injury  Prevention  Program.   An   attorney   for
Fairbanks Gold attended both presumptive death hearings.  Several
Fairbanks Gold employees testified at the first presumptive death
hearing,   and  a  former  employee  testified  at   the   second
presumptive  death hearing.  As we noted already, Fairbanks  Gold
interpreted the first verdict as deferring the possibility  of  a
claim.   Cartries continuing inquiries should also  have  alerted
Fairbanks  Gold  that  the family was not forgoing  a  claim  for
benefits.  The board found that Fairbanks Gold had ample,  timely
opportunity to investigate and defend against possible claims  by
the  beneficiaries.   This  finding is  fully  supported  by  the
          Finally,  equitable tolling requires that the defendant
not  be prejudiced.32 Fairbanks Gold asserts that because between
1997 and 2004 two important witnesses died and another moved  out
of  state,  it  was prejudiced by the Irbys delay in  filing  for
benefits.  It does not identify the witnesses.  Before the board,
Fairbanks  Gold  argued  that it was prejudiced  because  of  the
deaths  of  Steve Bonham, who testified at the first  presumptive
death  hearing, and Roger Lucas, the Fairbanks Gold employee  who
investigated the accident and wrote the incident report.  But the
record  reflects  that Lucas died in 1999, before  the  five-year
presumptive  death  period expired.33  Two other  Fairbanks  Gold
employees  testified at the first presumptive death hearing,  and
both  participated in the later proceedings.   One  testified  in
          person at the board hearing, and the other testified by telephone
at  the second presumptive death hearing.  Fairbanks Gold alleges
additional prejudice because of changes in its ownership but does
not  show  how an additional eleven-month delay (from  April  13,
2003 to March 1, 2004) prejudiced it.
          The  boards  finding  that  Fairbanks  Gold  had  ample
opportunity  to  investigate and defend the claim indicates  that
Fairbanks  Gold  was not prejudiced by any delay  in  pursuing  a
presumptive  death certificate before filing a  claim  for  death
          Carman  v.  Prudential Insurance Co. does not foreclose
the  equitable tolling principles we apply here.34  There  is  no
indication  there  was any dispute in Carman  about  whether  the
missing  person  was actually still alive and had engineered  his
disappearance.  The statutory presumption of death  is  generally
considered a rebuttable presumption,35 and Fairbanks Gold insisted
that  Irby  was still alive.  Moreover, there was no  attempt  in
Carman  to  obtain a prompt determination of death,36 unlike  the
situation  here.   Nor  was  there any indication  of  relatively
diligent  inquiries by Ruth Carman that were either  unsuccessful
or  discouraged.37   In any event, she did not  file  suit  until
nearly fifteen years after her husband disappeared while piloting
an airplane.38
          We  conclude that there are no genuine factual disputes
as  to  any  of  the elements of equitable tolling and  that  the
parties had a fair opportunity to dispute parallel issues  before
the  board.  The Irbys satisfy the elements of equitable tolling:
the  Irbys pursuit of a presumptive death certificate and related
inquiries  gave  adequate notice of the claim to Fairbanks  Gold;
Fairbanks Gold was not prejudiced; and the Irbys acted reasonably
and  in  good  faith in pursuing a presumptive death  certificate
before  filing  their claim for death benefits,  particularly  in
light  of  Fairbanks  Golds December 1997  controversion.   Their
claim  was filed within a reasonable period of time for equitable
tolling purposes because it was filed within one year of the jury
verdict  which found that Irby was presumed to have died  in  the
April 1997 accident.
     C.   The  Superior  Court  Properly  Denied  the  Peremptory
          Challenge of Judge Olsen.
          The  Irbys  also appeal Presiding Superior Court  Judge
Steinkrugers  denial  of  their motion to peremptorily  challenge
Judge Olsen.  They assert that the hearing on the motion for stay
was  not  a hearing on the merits that waived their rights  under
Alaska  Civil Rule 42(c) because no factual issues were presented
and decided by Judge Olsen.
          Alaska Civil Rule 42(c)(4) provides:
          A  party  waives  the right to  change  as  a
          matter   of  right  a  judge  who  has   been
          permanently assigned to the case by knowingly
          participating before that judge in:
               (i)   Any   judicial  proceeding   which
          concerns   the  merits  of  the  action   and
          involves the consideration of evidence or  of
          affidavits . . . .
          We  hold  that the Irbys participation in the September
26  hearing on the stay motion waived their right to peremptorily
challenge Judge Olsen.  The Irbys argued the merits of  the  case
extensively  in  their opposition and filed  many  merits-related
exhibits  with  their opposition.  Presumably the superior  court
considered  the exhibits in deciding the motion.   A  motion  for
stay in a workers compensation case is similar to a motion for  a
preliminary  injunction,39  and  it  necessarily  involves   some
consideration of the merits of a case.
          Participation  in a hearing must also  be  knowing  for
waiver  to  occur.40  Here, even though counsel did not  actually
receive  notice  of  the  permanent assignment  until  after  the
hearing, he is deemed to have been on notice of the assignment.41
The  case  was  reassigned to Judge Olsen  before  the  contested
hearing.  The Irbys attorney had every reason to know in  advance
that  issues of substance would be considered at the hearing;  he
had  filed  a lengthy and detailed opposition to the stay  motion
and   knew  that  the  hearing  would  not  involve  routine   or
uncontested matters.  He traveled from Anchorage to Fairbanks  to
participate  in the hearing.  Under these circumstances,  counsel
potentially  interested in challenging  the  judge  who  will  be
presiding  over a scheduled hearing has ample reason to determine
by  inquiring of court staff or reviewing the court  file  before
the hearing whether a permanent assignment has already been made;
if he does not, he is presumed to have known of the assignment.
          Because  the Irbys knowingly participated in a  hearing
before Judge Olsen that required some consideration of the merits
of  the  action  and  the hearing involved the  consideration  of
evidence,  Judge  Steinkruger did not err in  denying  the  Irbys
peremptory challenge of Judge Olsen.
     D.   The Board Permissibly Denied the Irbys Penalty Request.
          The  Irbys  also challenge the boards denial  of  their
request for a penalty against Fairbanks Gold for failing  to  pay
benefits to them beginning in October 2003, when the second  jury
found that Irby died in the mining accident.  The Irbys sought  a
          penalty under AS 23.30.155(e), which requires that compensation
be  paid  within  seven days unless a notice of controversion  is
filed.  A controversion must be made in good faith to protect the
employer  from a penalty.42  Here, the board found that the  case
was  one  of  first impression, either because of  the  issue  of
whether a controversion filed after the issuance of a presumptive
death  certificate  was made in good faith,  or  because  of  the
unsettled  legal questions about the interaction of a presumptive
death  certificate and the statute of limitations  in  a  workers
compensation  case.   Partly  as a  result  of  the  novel  legal
questions  involved, the board stated that  we  cannot  find  the
employer did not act in good faith in filing its controversion.43
          It  is  not clear from the boards decision whether  its
determination regarding the controversion was a fact-based  or  a
legal  decision.  The Irbys contend that Fairbanks Gold  had  not
one shred of evidence that Edward Irby was alive after the second
presumptive  death hearing,  To the extent the  board  based  its
finding  of  good  faith on rumors of Irbys survival,  rumors  or
speculation  alone  cannot serve as a  basis  for  a  good  faith
controversion.44  But the 2004 controversion was based  primarily
on  legal  or  equitable  defenses  laches  and  the  statute  of
limitations   rather  than factual issues. Either  defense  could
serve as the good faith basis for a controversion because a good-
faith controversion can be based on a legal defense.45  Undisputed
evidence  showed that the Irbys filed their workers  compensation
claim  more  than a year after the accident.  If  the  Irbys  had
presented no evidence or argument justifying their filing of  the
claim  at  the  time  they  did, the board  might  have  accepted
Fairbanks  Golds legal argument that the statute  of  limitations
had run or its equitable argument that it had been prejudiced  by
the  length  of  time between the accident and the claim  filing.
Either  defense could have resulted in denial of the Irbys claim.
Fairbanks   Golds  reliance  on  the  timeliness   defenses   was
unsuccessful, but was not legally implausible.  Because Fairbanks
Gold raised colorable legal arguments that were based in part  on
undisputed  facts, we affirm the boards decision  that  Fairbanks
Golds 2004 controversion was not made in bad faith.
          The   superior  court  judgment,  which  reversed   the
Decision  and  Order of the board, is REVERSED.  We  REMAND  with
directions to reinstate the September 12, 2005 Final Decision and
Order of the board.  We AFFIRM the board decision not to impose a
penalty  on Fairbanks Gold.  We AFFIRM Judge Steinkrugers  denial
of the Irbys peremptory challenge of Judge Olsen.
     1     Carman  v.  Prudential Ins. Co., 748 P.2d 743  (Alaska
1988)  (holding  that  statute  of limitations  period  for  life
insurance  claim  for  death  of  disappeared  person  began   at
expiration of five-year presumptive death period).

     2    The court cited AS 13.06.035(5).

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

     4     Bailey  v. Tex. Instruments, Inc., 111 P.3d  321,  323
(Alaska 2005).

     5     Circle  De Lumber Co. v. Humphrey, 130 P.3d  941,  946
(Alaska 2006).

     6    DeYonge v. NANA/Marriott, 1 P.3d 90, 94 (Alaska 2000).

     7     Id.  (quoting Grove v. Alaska Constr. & Erectors,  948
P.2d 454, 456 (Alaska 1997)).

     8     Cook  v. Rowland, 49 P.3d 262, 264 (Alaska 2002)  (per

     9    AS 23.30.105(a) states:

               The right to compensation for disability
          under  this chapter is barred unless a  claim
          for  it  is filed within two years after  the
          employee has knowledge of the nature  of  the
          employees disability and its relation to  the
          employment  and after disablement.   However,
          the  maximum time for filing the claim in any
          event   other   than  arising   out   of   an
          occupational disease shall be four years from
          the   date  of  injury,  and  the  right   to
          compensation  for death is  barred  unless  a
          claim therefor is filed within one year after
          the   death,   except  that  if  payment   of
          compensation has been made without  an  award
          on  account of the injury or death,  a  claim
          may  be filed within two years after the date
          of  the  last  payment of benefits  under  AS
          23.30.041,  23.30.180, 23.30.185,  23.30.190,
          23.30.200,  or 23.30.215.  It is additionally
          provided that, in the case of latent  defects
          pertinent    to   and   causing   compensable
          disability,  the  injured employee  has  full
          right to claim as shall be determined by  the
          board, time limitations notwithstanding.
     10     The  board  wrote  to  the  Alaska  Bureau  of  Vital
Statistics  in May 1997, shortly after Fairbanks Gold  filed  the
notice of injury, seeking a copy of a death certificate for Irby.
Unlike   the  board,  the  Social  Security  Administration   has
regulations governing both proof of death and presumptive  death.
20 C.F.R.  404.720.721 (2007).

     11     See  Abbott  v.  State, 979 P.2d  994  (Alaska  1999)
(applying  federal equitable tolling doctrine to Jones Act  claim
following workers compensation claim); see also Dayhoff v. Temsco
Helicopters, Inc., 772 P.2d 1085, 1086-87 (Alaska 1989)  (holding
that  Department of Labor proceedings are alternative proceedings
for equitable tolling purposes).

     12     Maness v. Daily, 184 P.3d 1, 7 (Alaska 2008)  (citing
Ransom v. Haner, 362 P.2d 282, 285 (Alaska 1961)); see also Bouse
v.  Firemans  Fund  Ins.  Co., 932 P.2d 222,  236  (Alaska  1997)
(noting  that  appellate court can affirm on different  basis  in
administrative appeal).

     13    Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006).

     14     Lee Houston & Assocs., Ltd. v. Racine, 806 P.2d  848,
854  (Alaska  1991) (citing Jenkins v. Daniels, 751 P.2d  19,  22
(Alaska 1988)).

     15    Fred Meyer of Alaska, Inc. v. Bailey, 100 P.3d 881, 886
(Alaska  2004) (quoting Fred Meyer v. Adams, 963 P.2d 1025,  1027
n.6 (Alaska 1998)).

     16    Id. at 886.

     17     Long v. Holland Am. Line Westours, Inc., 26 P.3d 430,
434  (Alaska 2001) (citing West v. Buchanan, 981 P.2d 1065,  1068
(Alaska 1999)).

     18     Gudenau  v.  Sweeney Ins., Inc., 736  P.2d  763,  768
(Alaska 1987).

     19     Gudenau  v.  Sweeney Ins., Inc., 736  P.2d  763,  768
(Alaska 1987).

     20     Dayhoff  v. Temsco Helicopters, Inc., 772 P.2d  1085,
1087 (Alaska 1989).

     21    Id. at1088 n.6 (citing Gudenau, 736 P.2d at 769 n.8).

     22    AS 23.30.105(a).

     23     A  finding  of  presumptive death permits  a  missing
persons  estate to be probated under laws applicable to decedents
estates.  AS 09.55.050.

     24     AS; Alaska Dist. Ct. R. Civ. P. 32;  7
Alaska Administrative Code (AAC) 05.865.870 (2008).

     25     AS  13.06.035(5); Alaska Dist. Ct. R. Civ. P.  32(e);
Alaska R. Prob. P. 6; 7 AAC 05.440, .865.870 (2008).

     26    We do not decide whether the board has jurisdiction to
determine that a missing worker is dead.

     27    Alaska Dist. Ct. R. Civ. P. 32(e).

     28    Fairbanks Gold does not allege any bad faith by Edward
II  or  Cartrie,  and  there is no evidence to  support  such  an

     29     See  22A Am. Jur. 2d Death  423 (2003) (stating  that
life is conclusively presumed to continue until contrary is shown
by sufficient proof).

     30      Cf.  AS  09.10.100  (providing  general  statute  of
limitations); AS 13.16.040(a)(1)-(2) (extending permissible  time
for filing probates for absentees).

     31     Gudenau  v.  Sweeney Ins., Inc., 736  P.2d  763,  768
(Alaska 1987).

     32    Id. at 768.

     33    Fairbanks Gold did not give a date of death for Bonham.

     34     Carman  v. Prudential Ins. Co., 748 P.2d 743  (Alaska

     35    22A Am. Jur. 2d Death  435 (2003); see also Ahn v. Kim,
678  A.2d  1073,  1081-82 (N.J. 1996) (discussing presumption  of
death  and evidence to rebut presumption in wrongful death case);
In  re Geiger, 3 Cal. App. 4th 127, 135-36, 4 Cal. Rptr. 2d  252,
256-57  (Cal.  App. 1992) (noting that statutory  presumption  of
death can be rebutted).

     36     Carman,  748 P.2d at 745 (noting that widow  did  not
explain nearly fifteen year delay in making claim).

     37     In  addition  to the contacts we have  already  noted
between  Cartrie  and  the  board,  it  appears  that  Edward  II
contacted  the  Fairbanks court in 2002  about  filing  a  second
presumptive death petition and was discouraged from doing so.

     38    Carman, 748 P.2d at 743, 745.

     39    Olsen Logging Co. v. Lawson, 832 P.2d 174, 175 (Alaska

     40     Tunley  v. Municipality of Anchorage Sch. Dist.,  631
P.2d 67, 72-73 (Alaska 1981).

     41    We are referring to our Standing Advisory Committee on
the  Rules  of  Civil  Procedure the  question  of  modifying  or
clarifying Rule 42(c) to specify when  participation in a hearing
can  serve  to waive a partys right to peremptorily  challenge  a
judge,  even  if  the party is unaware that the  judge  has  been
permanently assigned to the case.

     42     Harp  v. ARCO Alaska, Inc., 831 P.2d 352, 358 (Alaska

     43    The boards decision reads, in relevant part:

          We   consistently  require  an  employer   or
          insurer to have specific evidence on which to
          base  a  controversion.  We have  found  that
          reasonable  minds  can differ  in  the  legal
          interpretation   of  discrepancies   in   the
          evidence  available, and  such  discrepancies
          can  be significant enough to support a  good
          faith controversion.
          We  find  the  instant case is one  of  first
          impression in Alaska.  Given that the  effect
          of  a  Presumptive Death Certificate had  not
          yet  been addressed in our state, given  that
          the  extended attempts to find the  body  had
          not been successful, and given the rumors  of
          the  employees survival, we cannot find  that
          the  employer  did not act in good  faith  in
          filing  its  controversion.  Accordingly,  we
          conclude no penalty is due. . . .
(Citations omitted.)

     44    Cf. Lajiness v. H.C. Price Constr. Co., 811 P.2d 1068,
1070  (Alaska  1991) (holding that boards factual prediction  was
speculative and could not provide basis for boards calculation of
wage rate).

     45     See  Harp, 831 P.2d at 358 (citing Kerley v. Workmens
Comp. App. Bd., 481 P.2d 200, 205 (Cal. 1971)).  Our citation  to
Kerley  indicates  that  doubt  from  a  legal  standpoint  is  a
permissible basis for a controversion.  Id.  See also  Thoeni  v.
Consumer  Elec. Servs., Inc., 151 P.3d 1249, 1259  (Alaska  2007)
(indicating  that  refusal  to  sign  board  releases  or  attend
required  medical  exam  is basis for good faith  controversion).
The board has interpreted Harp as permitting controversions based
on  the  statute of limitations.  See Booth v. Golden Van  Lines,
AWCB Decision No. 99-0084 (April 16, 1999) (finding controversion
based  on  statute of limitations justified).  The Irbys  do  not
argue  here  that  controversions  based  on  legal  issues   are

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