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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bohlmann v. Alaska Construction & Engineering, Inc. (04/17/2009) sp-6362

Bohlmann v. Alaska Construction & Engineering, Inc. (04/17/2009) sp-6362

     Notice:   This opinion is subject to correction  before
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) Supreme Court No. S- 12553
) Alaska Workers Compensation
v. ) Appeals Commission No. 06- 008
AMERICAN SPECIALTY ) No. 6362 April 17, 2009
INSURANCE, Its Workers)
Compensation Carrier, and WILTON )
Workers Compensation Adjuster,)

          Appeal  from  the Alaska Workers Compensation
          Appeals Commission, Kristin Knudsen, Chair.

          Appearances:  Theodore A. Bohlmann,  pro  se,
          Colfax,  Washington, Appellant.  Robin  Jager
          Gabbert  and  Merrilee S.  Harrell,  Russell,
          Wagg  Gabbert  &  Budzinski,  Anchorage,  for

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

          EASTAUGH, Justice.

          To  what  extent  must the Alaska Workers  Compensation
Board   inform  or  guide  pro  se  claimants?   Alaska   Statute
23.30.110(c) requires denial of a workers compensation  claim  if
the  claimant  does not file a request for a hearing  within  two
years  after the employer files a controversion notice.   Pro  se
claimant  Theodore Bohlmann filed his request for hearing  August
31, 2005, slightly more than two years after his employer filed a
notice of controversion on August 6, 2003.  The board then denied
his claim.  Because the board should have corrected the employers
erroneous  assertion  made at a July 2005  prehearing  conference
that the claim was already time barred, we reverse and remand  so
that the board may determine the merits of Bohlmanns compensation
rate claim.
          Theodore   Bohlmann  began  working  as  an  excavation
operator  for  Alaska  Construction & Engineering  (AC&E)  at  an
Eklutna  rock  quarry in late June 2001.  On  July  29,  2001,  a
falling boulder and several smaller rocks hit him when he got out
of his excavator at the work site.  Bohlmann was pinned under the
rocks  for about half an hour before being taken to the hospital.
He  broke  his left ankle, left leg, and some toes  in  his  left
foot,  and  he  had  a deep cut on his right knee  that  required
surgery.   AC&E  initially  paid him temporary  total  disability
(TTD)  benefits  at a rate of $168 per week; it  later  paid  him
permanent partial impairment (PPI) benefits.
          Bohlmann  filed  a pro se claim for adjustment  of  his
compensation rate on February 11, 2002.  He asserted,  apparently
based on advice he received from staff at the Division of Workers
Compensation,1 that his rate should have been calculated using AS
23.30.220(a)(10) rather than AS 23.30.220(a)(6).  AC&E  filed  an
answer  denying  Bohlmanns claim, but did not file  a  notice  of
controversion.    At   two  2002  prehearing   conferences,   the
prehearing officer told Bohlmann he would have to file and  serve
an  affidavit of readiness for hearing within two years after the
employer controverted his claim.
          On  July  10,  2003,  Bohlmann  filed  another  workers
compensation   claim.   It  requested  an   adjustment   in   his
compensation rate based on overtime he said had not been included
when  his  compensation was calculated.  On August 6, 2003,  AC&E
filed a controversion notice controverting the compensation  rate
adjustment  claim and asserting that Bohlmanns compensation  rate
had  been  correctly  computed under AS  23.30.220(a)(6).   AC&Es
notice  did  not  specify  the date of the  claim  or  claims  it
controverted.   From September to December 2003,  Bohlmann  filed
four  more  claims, three of which claimed an unfair or frivolous
          Over  the next few years a board designee held  several
prehearing conferences on various issues and claims.  An attorney
represented Bohlmann for about eight months but did not  file  an
affidavit  of readiness for hearing.  At a prehearing  conference
on  July 20, 2005, Bohlmann, who was by then again pro se,  asked
to  amend  his  June  8, 2005 TTD benefits  claim  to  include  a
compensation  rate  adjustment claim.  AC&E objected,  contending
          that Bohlmann had previously filed compensation rate adjustment
claims that were barred by AS 23.30.110(c).  The record does  not
indicate  that  the  board designee who  conducted  the  July  20
prehearing conference informed Bohlmann either that the time  bar
in  subsection  .110(c)  had not in fact  run  yet  or  that  the
deadline for submitting an affidavit of readiness for hearing was
actually  August  6,  2005, two years after AC&E  had  filed  its
notice  of controversion.  With the assistance of division staff,
Bohlmann  filed on August 31, 2005 an affidavit of readiness  for
hearing  in  which he requested a hearing on claims he  filed  on
September  9,  2003; September 16, 2003; October  20,  2003;  and
December 10, 2003.  AC&E filed an opposition.
          The   parties   stipulated  to   a   hearing   on   the
applicability  of  AS 23.30.110(c) to Bohlmanns  rate  adjustment
claims;  the hearing took place in January 2006.  AC&E  presented
testimony from the workers compensation officer who handled  most
of  the  prehearing conferences in Bohlmanns case.  She testified
that   as  far  as  she  remembered,  the  prehearing  conference
summaries  accurately reflected what happened at  the  prehearing
conferences  and  that  she had, on several  occasions,  informed
Bohlmann  that  he needed to file an affidavit of  readiness  for
hearing  within  two  years  of the filing  of  a  controversion.
Bohlmann  was  pro se and did not testify.  He mentioned  in  his
opening  statement  that he had difficulty  working  through  the
workers  comp  system  and that he was in contact  with  division
staff  getting  advice.  He argued in his closing statement  that
(1)  he  thought the controversion had been lifted;  (2)  he  had
trouble  filling out the affidavit of readiness for hearing  that
he successfully submitted; and (3) his affidavit of readiness was
only about twenty days late.
          The board ruled that Bohlmanns claim for a compensation
rate  adjustment  [was]  denied  and  dismissed  pursuant  to  AS
23.30.110(c).  It found that subsection .110(c)s two-year  period
for  filing  an affidavit of readiness for hearing began  running
when  AC&E  filed the August 6, 2003 controversion  notice;  that
division  staff had told Bohlmann the consequences of failing  to
file  a  timely  affidavit; and that Bohlmann  did  not  file  an
affidavit until August 31, 2005, about twenty-five days after the
two-year period for filing a hearing request expired.  The  board
decided  that  Bohlmanns belief that the controversion  had  been
lifted and the fact that his affidavit was only twenty days  late
did not justify his untimeliness.  It further found that even  if
the August 31, 2005 [affidavit of readiness for hearing] were not
late, the claim for a compensation rate adjustment would still be
barred, as the [affidavit of readiness for hearing] applied  only
to  [workers compensation claims] other than the ones  requesting
the rate adjustment.
          Bohlmann  appealed  to the Alaska Workers  Compensation
Appeals Commission.  He raised or seemed to raise three appellate
arguments  to  excuse missing the filing deadline:   (1)  he  had
received inadequate assistance from the board; (2) the board  had
broad  power to extend the deadline and abused its discretion  in
not  accepting  a  late-filed request for hearing;  and  (3)  his
former  attorney  had not adequately represented  his  interests.
AC&E responded that (1) the time bar in subsection .110(c) is not
discretionary; (2) Bohlmann had plenty of notice that  he  needed
to  file an affidavit of readiness for hearing; and (3) no  facts
in Bohlmanns case justified tolling the statute.
          The appeals commission affirmed.  It decided that there
was  substantial evidence in the record that Bohlmann  filed  his
affidavit of readiness for hearing more than two years after  his
rate adjustment claims were formally controverted and that he was
adequately  informed of the time bar in AS 23.30.110(c)  and  the
consequences  of  filing an untimely request.   It  decided  that
because  the  time bar is statutory, the board had  no  equitable
power to excuse his late filing.
          Bohlmann appeals.  He is pro se on appeal.
     A.   Standard of Review
            In workers compensation appeals from decisions of the
appeals commission, we review the commissions decision because it
is  the  final administrative action.2   In deciding whether  the
appeals   commission  erred  in  reviewing  the  boards   factual
findings,   discretionary  decisions,  and  legal   rulings,   we
independently assess the boards rulings and in doing so apply the
appropriate standards of review. Proper application of a  statute
of  limitations presents a question of law to which we apply  our
independent   judgment.3   Applying  the   independent   judgment
standard,  we  adopt the rule of law that is most  persuasive  in
light   of  precedent,  reason,  and  policy.4   When  an  agency
interprets and applies its own regulations, we review the  agency
action   for  an  abuse  of  discretion.5   Because  the  appeals
commission  and the board appear to have engaged in a  fact-based
analysis  of  whether the board satisfied its duty adequately  to
advise  Bohlmann of his rights and how to secure them, we  review
the boards decision for abuse of discretion.
     B.   The Board Should Correct Mistaken Information.
          Bohlmann  argues that board staff failed to  adequately
advise  him  how  to preserve his right to compensation.   Before
considering that contention, we must consider what duty the board
or the division owes self-represented claimants to advise them of
claim procedures.
          Alaska  Statute 23.30.110(c) sets out the  procedure  a
party  must follow to request a hearing before the board and  the
deadlines related to this request.  It provides in part,  If  the
employer  controverts a claim on a board-prescribed controversion
notice  and  the employee does not request a hearing  within  two
years following the filing of the controversion notice, the claim
is  denied.6   We  have  held that subsection  .110(c)s  two-year
period  begins  to  run  only after an  employer  controverts  an
employees written workers compensation claim.7  The board  found,
and  no  one  disputes, that AC&Es August 6,  2003  controversion
notice  start[ed] the AS 23.30.110(c) time clock so that Bohlmann
should  have  filed  his affidavit of readiness  for  hearing  by
August 6, 2005.
          A  central  issue inherent to Bohlmanns appeal  is  the
extent  to which the board must inform a pro se claimant  of  the
          steps he must follow to preserve his claim.  The parties agree
that   the   board  designee  who  presided  at  the   prehearing
conferences gave Bohlmann general information about the  two-year
time  bar.   The board and then the appeals commission determined
that  Bohlmann had been adequately and correctly informed of  the
time  bar  and  the consequences of not filing  an  affidavit  of
readiness for hearing.
          In  Richard v. Firemans Fund Insurance Co. we held that
the board must assist claimants by advising them of the important
facts  of  their  case and instructing them how to  pursue  their
right to compensation.8  We have not considered the extent of the
boards   duty  to  advise  claimants.   The  appeals   commission
emphasized  that division staff have a duty to be  impartial  and
stated  that [a]cting on behalf of one party against  another  or
pursuing  a  claim on behalf of one party in a matter before  the
board  would  violate the duty of the adjudicators.  The  appeals
commission  determined  that  the prehearing  conference  officer
fulfilled  the requirements of Richard by informing  Bohlmann  in
general terms of the two-year time bar.
          It may be arguable in such a case that the board had  a
duty  to  tell the claimant that the two-year period was running;
it  may also be arguable that it had a duty to tell him when  the
period  began  running, or even the specific date  on  which  the
deadline  would expire.  But we do not need to consider the  full
extent  of the duty here.  The board designee or the board should
have  corrected the erroneous assertion made by AC&E at the  July
20,  2005  prehearing  conference  that  the  subsection  .110(c)
deadline had already run, but did not do so.  Alternatively,  the
designee  or  the  board  should  at  least  have  told  Bohlmann
specifically  how  to determine whether, as  AC&E  asserted,  the
deadline  had  already  run  and  how  to  determine  the  actual
deadline.  This minimal information would have made it  clear  to
the claimant both the correct deadline and that he still had more
than two weeks in which to submit the required affidavit.
          By attempting at that conference to amend his June 2005
claim  to  include  a  claim  for compensation  rate  adjustment,
Bohlmann  manifested an intent to prosecute the  rate  adjustment
claim.9   AC&Es July 20, 2005 contention that the rate adjustment
claim  was  already barred was incorrect; in fact,  Bohlmann  had
until August 6, 2005 in which to file his affidavit of readiness.10
We  do not need to decide here whether the prehearing officer had
a  duty  to tell Bohlmann the exact date, August 6, by  which  he
needed to file an affidavit of readiness for hearing in order  to
preserve  his claim.  Given AC&Es incorrect statement  about  the
timeliness of the rate adjustment claim and Bohlmanns request  to
include a compensation rate adjustment claim in the later  claim,
the  prehearing officer should have told Bohlmann  in  more  than
general terms how he might still preserve the claim, or at  least
specifically  how  Bohlmann  could  determine  whether  AC&E  was
correct  in  contending that the claim was already barred.   This
requirement  is similar to our holdings about the  duty  a  court
owes to a pro se litigant.11
          We have held that a trial court has a duty to inform  a
pro  se  litigant of the necessity of opposing a summary judgment
          motion with affidavits or by amending the complaint.12  We
likewise have held that a trial court must tell a pro se litigant
that he needs an expert affidavit in a medical malpractice case13
and  must  inform him of deficiencies in his appellate paperwork,
giving  him  an  opportunity to correct them.14  When  a  pro  se
litigant  alerted a trial court that the opposing party  had  not
complied  with  her discovery requests, we held  that  the  court
should  have  informed  her of the basic steps  she  could  take,
including the option of filing a motion to compel discovery.15  In
evaluating  the  accuracy of notice of procedural  rights  by  an
opposing  party,  we  have noted that pro se  litigants  are  not
always  able  to distinguish between what is indeed  correct  and
what  is merely wishful advocacy dressed in robes of certitude.16
The  board,  as  an  adjudicative body  with  a  duty  to  assist
claimants,  has  a  duty  similar to that  of  courts  to  assist
unrepresented litigants.
          Here,  the  board  at  a minimum should  have  informed
Bohlmann  how  to  preserve  his claim  or  specifically  how  to
evaluate the accuracy of AC&Es representation that the claim  was
time  barred.  Its failure to recognize that it had to do  so  in
this case was an abuse of discretion.17  Its failure to do so  is
inconsistent   with  the  appeals  commissions  conclusion   that
division staff did all that Richard required.
          Correcting  AC&Es misstatement or telling Bohlmann  the
actual  date by which he needed to file an affidavit of readiness
for  hearing  to preserve his claim would not have been  advocacy
for one party or the other.18  Indeed, at oral argument before us,
counsel for AC&E stated that it would have been just fine  for  a
board  employee to have informed Bohlmann of the actual  deadline
for  filing an affidavit of readiness for hearing.  Because there
is  no  indication in the appellate record that the board or  its
designee  informed Bohlmann of the correct deadline or  at  least
how  to determine what the correct deadline was, the board should
deem his affidavit of readiness for hearing timely filed.19  This
is  the  appropriate  remedy  because  the  boards  finding  that
Bohlmann  had  proved  himself  capable  of  filing  claims   and
petitions  even  absent having counsel20  is  consistent  with  a
presumption that Bohlmann would have filed a timely affidavit  of
readiness had the board or staff satisfied its duty to him.
          We  REVERSE the decisions of the appeals commission and
the  board and REMAND to the appeals commission with instructions
to  remand  to the board for further proceedings consistent  with
this opinion.
     1      We   refer   to  division  staff  and   board   staff
interchangeably in this opinion.

     2     Barrington v. Alaska Commcn Sys. Group, Inc., 198 P.3d
1122, 1129  (Alaska 2008).

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

     4     Seybert v. Cominco Alaska Exploration, 182 P.3d  1079,
1089 (Alaska 2008).

     5     J.  L.  Hodges v. Alaska Constructors, Inc., 957  P.2d
957, 960 (Alaska 1998).

     6    AS 23.30.110(c) provides:

               Before a hearing is scheduled, the party
          seeking a hearing shall file a request for  a
          hearing  together  with an affidavit  stating
          that   the   party  has  completed  necessary
          discovery,  obtained necessary evidence,  and
          is  prepared  for the hearing.   An  opposing
          party  shall  have 10 days after the  hearing
          request  is filed to file a response.   If  a
          party  opposes the hearing request, the board
          or  a board designee shall within 30 days  of
          the  filing  of  the  opposition  conduct   a
          pre-hearing  conference  and  set  a  hearing
          date.   If opposition is not filed, a hearing
          shall  be  scheduled no later  than  60  days
          after  the  receipt of the  hearing  request.
          The  board shall give each party at least  10
          days notice of the hearing, either personally
          or  by  certified mail.  After a hearing  has
          been scheduled, the parties may not stipulate
          to  change  the  hearing date or  to  cancel,
          postpone, or continue the hearing, except for
          good cause as determined by the board.  After
          completion  of  the hearing the  board  shall
          close  the  hearing record.  If a  settlement
          agreement is reached by the parties less than
          14 days before the hearing, the parties shall
          appear  at the time of the scheduled  hearing
          to   state   the  terms  of  the   settlement
          agreement.  Within 30 days after the  hearing
          record  closes,  the  board  shall  file  its
          decision.   If  the  employer  controverts  a
          claim  on  a  board-prescribed  controversion
          notice  and the employee does not  request  a
          hearing within two years following the filing
          of  the  controversion notice, the  claim  is
     7     Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121,  1124
(Alaska 1995).

     8     Richard v. Firemans Fund Ins. Co., 384 P.2d  445,  449
(Alaska  1963).  In Richard we held that the board has a duty  of
fully  advising [a claimant] as to all the real facts which  bear
upon  his condition and his right to compensation, so far  as  it
may know them, and of instructing him on how to pursue that right
under the law.  Id. at 449.

     9     See Gilbert v. Nina Plaza Condo Assn, 64 P.3d 126, 129
(Alaska  2003) (noting pro se litigants attempts to inform  court
of discovery difficulties).

     10    In its January 13, 2006 hearing brief before the board,
AC&E asserted that Bohlmann had until August 6, 2005 to request a
hearing.  The board agreed that the deadline was August 6, 2005.

     11     See  Breck  v. Ulmer, 745 P.2d 66, 75  (Alaska  1987)
(stating that trial judge should inform pro se litigant of proper
procedure   for  action  litigant  is  obviously  attempting   to
accomplish); cf. Prentzel v. State, Dept of Pub. Safety, 169 P.3d
573,  593  (Alaska  2007)  (noting that  court  notified  pro  se
litigant of deadlines for motions).

     12     Hymes  v.  Deramus, 119 P.3d 963, 966  (Alaska  2005)
(quoting  Sopko v. Dowell Schlumberger, Inc., 21 P.3d 1265,  1273
(Alaska 2001)).

     13    Id. at 966.

     14     Dougan v. Aurora Elec. Inc., 50 P.3d 789, 795 (Alaska

     15    Gilbert, 64 P.3d at 129.

     16    Hymes, 119 P.3d at 967.

     17     Snyder v. American Legion Spenard Post 28,  119  P.3d
996, 1001 (Alaska 2005) (reviewing courts decision on guidance to
pro se litigant for abuse of discretion).

     18    See John M. Greacen, Legal Information vs. Legal Advice
Developments During the Last Five Years, 84 Judicature 198,  198-
99  (2001) (stating that answering questions about deadlines  and
due dates is legal information).

     19     Cf.  Crum  v. Stalnaker, 936 P.2d 1254, 1258  (Alaska
1997) (noting agencys failure to provide information when it  had
duty to do so).

     20    The commission held on appeal that substantial evidence
supported this finding.

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