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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Eder v. M-K Rivers (10/21/2016) sp-7130

Eder v. M-K Rivers (10/21/2016) sp-7130

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  

                                                                                                     

          corrections@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



HARVEY  MARK  EDER,                                         )  

                                                            )         Supreme  Court  No.  S-15871  

                              Appellant,                    )  

                                                                                                 

                                                            )         Alaska Workers' Compensation  

                                                                                                                         

          v.                                                )         Appeals Commission No.  14-017  

                                                            )  

                        

M-K RIVERS and                                              )                            

                                                                      O P I N I O N  

                                      

WESTCHESTER FIRE INSURANCE  )  

                                                            )                                              

CO.                                                                  No. 7130 - October 21, 2016  

                                                            )
  

                              Appellees.                    )
  

                                                            

_______________________________ )
  



                                                                                                 

                    Appeal  from the  Alaska  Workers'  Compensation Appeals  

                    Commission.  



                                                                                                 

                    Appearances:  Harvey  Mark  Eder,  pro  se,  Santa  Monica,  

                                                                                                         

                    California,  Appellant.               Randall  J.  Weddle  and  Troy  D.  

                                                                                                         

                    Bittner,  Holmes  Weddle  &  Barcott,  P.C.,  Anchorage,  for  

                    Appellees.  



                                                                                                         

                    Before:  Stowers, Chief Justice, Fabe, Winfree, Maassen, and  

                                 

                    Bolger, Justices.  



                                                 

                    STOWERS, Chief Justice.  



I.        INTRODUCTION  



                                                                                                                               

                    In 2012 a worker whose Alaska workers' compensation case was closed in  



                                                                                                                   

 1977 filed a new  claim related to his  injury  from the  1970s.  The Alaska Workers'  



                                                                                                                    

Compensation Board dismissed the new claim, and he appealed to the Alaska Workers'  



                                                                                                                          

Compensation  Appeals  Commission.                           The  Commission  granted  the  worker  three  


----------------------- Page 2-----------------------

                                                                                                                          

extensions of time to file his brief and later issued an order to show cause why the appeal  



                                                                                                                               

should  not  be  dismissed.                 The  Commission  dismissed  the  appeal,  relying  on  its  



                                                                                                        

interpretation of a Board regulation.  We reverse the Commission's decision.  



                                                              

II.       FACTS AND PROCEEDINGS  



                                                                                                                               

                    Harvey Eder worked for MK-Rivers on a construction project related to the  



                                                                                                                             

Alaska pipeline.  He injured his neck at work in July 1975 and received temporary total  



                                                                                                              

disability (TTD) for the injury.  In a 1977 decision the Alaska Workers' Compensation  



                                                                                                                               

Board denied further TTD because it thought Eder was "exaggerating his problems for  



                                          

secondary gain (additional compensation)."  



                                                                                                                                     

                    Eder moved back to California and at one point worked for a locksmith.  



                                                                                                                              

He was injured in a work-related car accident in the early 1980s while working for that  



                                                                                                                       

business and received California workers' compensation benefits for those injuries.  



                                                                                                                         

Doctors in California attributed a percentage of Eder's disability to the initial Alaska  



injury.  



                                                                                                                                 

                    Eder filed a pro se written claim for permanent total disability (PTD) in  



                                                                                                                              

Alaska in 1986; the record reflects that he was raising a claim for a "latent defect" at that  



                                                                                                                                     

time.  Shortly after Eder filed the claim an attorney entered an appearance on his behalf.  



                                                                                                                               

Nothing in the record indicates the Board held a hearing on the 1986 claim, and at the  



                                                                                                                            

2014 hearing M-K Rivers's attorney said, "That [1986 claim] disappeared.  It just went  



                                                                                                                           

away." The record contains several depositions taken in the Alaska case from the 1980s  



                                                                                                                        

as well as a "Statement of Readiness to Proceed" filed on Eder's behalf.  In the Board's  



                                                                                                                             

2014 decision, the Board did not discuss the 1986 written claim, saying only that Eder  



                                                                                                   

"sought assistance from [an] . . . attorney . . . in 1986 to explore reopening his claim";  



                                                                                                                              

the Board noted Eder's testimony that his attorney had died and because of his death "the  



                       

claim was not pursued."  



                                                                                                                               

                    Eder began to experience mental health problems at some point in the  



                                                               -2-                                                         7130
  


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  1980s. His psychiatric diagnoses included paranoid schizophrenia, polysubstance abuse                                                                                                                                                                                                                                                                                                                                                                                                                                              



 disorder,   dysthymic   disorder   with  anxiety,   and   "somatic   delusion."     His   treating  



psychiatrist in California attributed his mental decompensation to the work-related car                                                                                                                                                                                                                                                                                                                                                                                                                                                              



 accident, and the judge in the California workers' compensation case apportioned about                                                                                                                                                                                                                                                                                                                                                                                                                                               



 60% of Eder's mental disability to that accident.                                                                                                                                                                                                         



                                                                                      In 2012, for reasons that are not readily apparent from the record, Eder                                                                                                                                                                                                                                                                                                                                                                           



 sought to reopen his Alaska workers' compensation case, again requesting PTD.  At a                                                                                                                                                                                                                                                                                                



prehearing conference his claim was amended to include permanent partial impairment,                                                                                                                                                                                                                                                                                                                                                                                                        



medical and transportation benefits, reemployment benefits, and penalties and interest.                                                                                                                                                                                                                                                                                                                                                                                                                              



M-K Rivers filed an answer and several controversion notices.                                                                                                                                                                                                                                                                                                                                                 It then filed a petition to                                                                                                                   



 dismiss the claimbased on res judicata grounds, arguing that the claims Eder was making                                                                                                                                                                                                                                                                                                                                                                                                                                  



 in 2012 had been decided in the 1977 decision.                                                                                                                                                                                                    



                                                                                      After a hearing the Board dismissed Eder's 2012 claim on res judicata                                                                                                                                                                                                                                                                                                                                                         



 grounds, rejecting Eder's "implicit" theory that the time for appeal of the 1977 decision                                                                                                                                                                                                                                                                                                                                                                                                                         



 should have been tolled because he was mentally incompetent throughout this time                                                                                                                                                                                                                                                                                                                                                                                                                                                         



period.   Noting that Eder had contacted an Alaska attorney in 1986, the Board thought                                                                                                                                                                                                                                                                                                                                                                                                                                 



Eder's California workers' compensation case contained ample evidence that he was at                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



 least competent enough to cooperate with attorneys to secure benefits.                                                                                                                                                                                                                                                                                                                                  



                                                                                      Eder appealed                                                                             to theAlaskaWorkers'CompensationAppealsCommission.                                                                                                                                                                                                                                                    



He requested and was granted a waiver of fees and transcription costs.  He then asked  



 for a series of extensions of time in which to file his opening brief.                                                                                                                                                                                                                                                                                                                                                                      The first motion is                                                                                             



 fairly legible; in it Eder asked for a ten-day extension so that he could copy an additional                                                                                                                                                                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                                                                                                                                                                                              1  He also asked that  

2,004 pages from the Board record and "look for missing evidence."                                                                                                                                                                                                                                                                                                                                                                                                                                                                               



                                           1                                          He  did  not  explain  what  evidence  might  be  missing.  



                                                                                                                                                                                                                                                                             -3-                                                                                                                                                                                                                                                           7130  


----------------------- Page 4-----------------------

his employer pay for his travel expenses because he was homeless.                                                                                                                                                2  The Commission  



granted a ten-day extension of time.                                                             



                                          The Commission clerk wrote a memo to the file in October 2014, recording                                                                                                                              



a series of phone calls from Eder and her investigation of the questions he raised.                                                                                                                                                                          Eder  



indicated he had two "CDs that contained 7,200 pages of the record" but he was "trying                                                                                                                                                                 



to figure out what the other 2,300 pages in the record [were]."                                                                                                                                     The Commission clerk                                      



called the Board; according to her memo, the CD contained the Board record as of                                                                                                                                                                                      



February 2014, when Eder had requested a copy of the record; because Eder had not                                                                                                                                                                    



made another request for a copy, the Board had not supplied him with a copy of the rest                                                                                                                                                                           



of the file.                      A later note in the record shows that the Board did not have the last 2,300                                                                                                                                              

pages of the record on a CD.                                                              3  



                                          Eder filed two additional requests for extensions of time to file his brief in  

                                                                                                                                                                                                                                                                        



the Commission, both of which appear to be copies of the initial request with additional  

                                                                                                                                                                                                                                              



writing on them.   The second motion informed the Commission that Eder was still  

                                                                                                                                                                                                                                                                 



homeless and asked for up to 90 days to file his brief.   The third request contained  

                                                                                                                                                                                                                                              



additional writing that is largely illegible.  The Commission granted both requests, but  

                                                                                                                                                                                                                                                                   



                     2                    A memo to the file from the Commission's clerk indicates that Eder called                                                                                                                                        



and reported that he had spoken with the insurer's attorney, who agreed to a 30-day                                                                                                                                                                 

extension of time but would not agree to pay for Eder to come to Alaska to review the                                                                                                                                                                               

record.  



                     3                    There may have been some miscommunication about the CD.  A Board  

                                                                                                                                                                                                                                                          

employee wrote Eder in February 2014 to tell him that the Board had scanned his 7,358  

                                                                                                                                                                                                                                                            

pages of "medical records" into the Board's "ICERS database."  The Board evidently  

                                                                                                                                                                                                                                                

sent copies of a CD containing the records to Eder and M-K Rivers and told Eder the  

                                                                                                                                                                                                                                                                   

records had not yet been admitted into evidence.  A California attorney had also sent  

                                                                                                                                                                                                                                                                

copies of documents from the California case to M-K Rivers's attorney, who copied the  

                                                                                                                                                                                                                                                                    

documents, numbered them, and returned them.  There was evidently some question  

                                                                                                                                                                                                                                                  

whether the documents Eder sent to the Board were the same documents the attorney had  

                                                                                                                                                                                                                                                                   

sent to M-K Rivers.  

                                        



                                                                                                                                   -4-                                                                                                                        7130
  


----------------------- Page 5-----------------------

it indicated that the third one would be the last.                                                                                                                On the same day that Eder asked for the                                                                                         



third extension of time, he filed copies of the Commission's pro se briefing forms with                                                                                                                                                                                                      



what appear to be handwritten notes on them as well as Board forms related to medical                                                                                                                                                                                            



records.   Much of the writing is indecipherable, but some of it appears to refer to Eder's                                                                                                                                                                                           



case. For example, underneath "why didn't I appeal" is written "severe depression"; the                                                                                                                                                                                                           



document also refers to transcripts and a "missing record of tape" from 1976.                                                                                                                                                                            



                                              In   the   December   23,   2014   order   granting   the   third   extension,   the  

                                                                                                                                            4  and notified Eder that if he failed to "file his  

Commission cited one of its regulations                                                                                                                                                                                                                                                           



opening brief and excerpt of record on or before Friday, January 16, 2015, his appeal  

                                                                                                                                                                                                                                                                                      



may be dismissed for failure to prosecute."   Eder filed a petition for review of the  

                                                                                                                                                                                                                                                                                                 



Commission's third order with this court.  

                                                                                                                            



                                               In January Eder filed two motions with the Commission:  a fourth motion  

                                                                                                                                                                                                                                                                                    



for extension of time and a motion to stay the proceedings while the petition for review  

                                                                                                                                                                                                                                                                                     



was pending.  The Commission denied the request for extension of time, noting that it  

                                                                                                                                                                                                                                                                



had previously granted several extensions of time, for a total of 80 days.  It decided it  

                                                                                                                                                                                                                                                                          



would only stay the proceedings if this court granted review.   We denied review on  

                                                                                                                                                                                                                                                                                                   



February 3, 2015.  

                                          



                                               On January 29 the Commission issued an Order to Show Good Cause,  

                                                                                                                                                                                                                                                             



                       4                       8 Alaska Administrative Code (AAC) 57.250(a) (2011) provides:                                                                                                                                      



                                              If   an   appellant   fails   to   comply   with   AS   23.30.125   -  

                                              23.30.128, fails to comply with this chapter, fails to pay the   

                                               cost                   of              preparing                                 the                 transcript,                                as              provided                                 in  

                                               8 AAC 57.120(j), or fails to comply with an order of the chair                                                                                                                                

                                               or   commission,   the   chair   will   issue   written   notice   to   the  

                                               appellant that specifies the nature of the failure and states that                                                                                                                                 

                                              the appeal may be dismissed for failure to prosecute if the                                                                                                                                          

                                               appellant fails to take appropriate corrective action no later                                                                                                                                 

                                              than 20 days after receipt of the notice.                                                                        



                                                                                                                                                  -5-                                                                                                                                       7130
  


----------------------- Page 6-----------------------

giving Eder about two weeks to show cause why his appeal should not be dismissed for                                                                                                                                                          



failure to prosecute.                                        Eder responded, saying that (1) he did not have "the missing                                                                                                      



evidence [his] file added"; (2) he was homeless; and (3) he was heavily in debt, which                                                                                                                                              



made   his  compensable disability                                                                 greater.     He argued                                      that the balance of hardships                             



"cite[d]" that the "information (as stated in [his] recent motion) should be provided to                                                                                                                                                        



 [him]" and "incorporat[ed] all of [his] record in this case by reference that support[ed                                                                                                                              



his] position."   



                                      The    Commission    dismissed    the    appeal.       Calling   Eder's    personal  



circumstances "unfortunate,"theCommission decided                                                                                                        therewas"noapplicable'balance                                         



of   hardships'   law   requiring   the   commission   to   provide   [Eder]   with  the   requested  



documents/evidence."  Instead, the Commission cited a Board regulation and said that                                                                          



regulation    "precludes    the    workers'    compensation    division,    which    includes    the  



commission, from providing documents/evidence at no charge to [Eder]."                                                                                                                     

                                                                                                                          5      Concerned that some of Eder's briefing  

                                      Eder appealed the dismissal.                                                                                                                                                            



suggested  he  wanted  this  court  to  review  the  substance  of  the  Board's  decision,  

                                                                                                                                                                                                                           



M-K Rivers moved to limit the appeal to the question whether the Commission abused  

                                                                                                                                                                                                                                  



its discretion in dismissing the appeal, arguing that the Commission had yet to review the  

                                                                                                                                                                                                                                              

merits of the Board's decision. We granted M-K Rivers's motion.6  The sole issue before  

                                                                                                                                                                                                                                    



us is thus whether the Commission's dismissal decision was correct.  

                                                                                                                                                                             



III.               STANDARD OF REVIEW  

                                                                        



                                      In   an   appeal   from   the   Alaska   Workers'   Compensation   Appeals  

                                                                                                                                                                                                                           



                   5                  As part of Eder's motion to waive fees he asked for a copy of the record;                                                                            



the appellate clerk's office sent him a CD with a scanned copy of the record.                                                                                                                                               



                   6                  Eder also moved for a stay of the present appeal pending Board action on  

                                                                                                                                                                                                                                              

another claim.  We denied the stay.  

                                                                                       



                                                                                                                       -6-                                                                                                              7130
  


----------------------- Page 7-----------------------

                                                                                                                                         7  

Commission, "we review the Commission's decision rather than the Board's."                                                                    We  



apply   our  independent   judgment   to   questions   of   law   that   do   not   involve   agency  

expertise.8                                                                                                                          

                    Our review of an agency's interpretation of its own regulation is reviewed  



                                                                                                                                   

under the reasonable basis standard, but "we independently review whether a regulation  



                              9  

                                                                                                                                            

applies to a case."              Review of an agency's application of its own regulations to the facts  



                                                                                                                                                

of a case "is limited to whether the agency's decision was arbitrary, unreasonable, or an  



                                    10  

                 

abuse of discretion."                                                                                                                            

                                         We will find an abuse of discretion when the agency action is  



                                                                                                                                                 11  

                                                                                                                                                      

"arbitrary, capricious,manifestly unreasonable, or . . . stems froman improper motive." 



IV.        DISCUSSION  



                                                                                                                                      

           A.          The Commission Abused Its Discretion In Dismissing Eder's Appeal.  



                                                 

                       1.         8 AAC 45.030  



                                                                                                                                                 

                       Ultimately this appeal is about access to the appellate record for pro se  



                                                                                                                                                 

litigants in workers' compensation cases.  Even though Eder's pleadings are difficult to  



                                                                                                                                         

read at times, the record is clear that he sought a complete copy of the Board record  



                                                                                    12  

                                                                                                                                               

before  he  filed  his  brief  with  the  Commission.                                     Accessing  the  record  can  be  an  



           7           Humphrey v. Lowe's Home Improvement Warehouse, Inc.                                              , 337 P.3d 1174,       



 1178 (Alaska 2014).     



           8           Monzulla v. Voorhees Concrete Cutting, 254 P.3d 341, 343 (Alaska 2011).  

                                                                                                                                         



           9           Garner v. State, Dep't of Health & Soc. Servs., Div. of Med. Assistance,  

                                                                                                                                 

63 P.3d 264, 268 (Alaska 2003).  

                                              



            10         Griffiths v. Andy's Body & Frame, Inc., 165 P.3d 619, 623 (Alaska 2007)  

                                                                                                                                          

(quoting Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960 (Alaska 1998)).  

                                                                                                                               



            11         Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1297 (Alaska 1985) (quoting  

                                                                                                                                      

Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)).  

                                                                             



            12         He makes clear in his opening brief before us that he wants "a complete  

                                                                                                                                    

hard copy" of the record.  

                                



                                                                       -7-                                                                 7130
  


----------------------- Page 8-----------------------

important  part  of   presenting   an   appeal,   and   it   is   not   clear   whether   or   when   the  



Commission waives for self-represented litigants its requirement that an excerpt of                                                                            

record be filed.             13  

                                  



                                                                                                                                               

                         In reaching its decision here the Commission applied its own regulations  



                                                                                                                                                            

about dismissal of appeals, but it also relied on one of the Board's regulations.  The  



                                                                                                                                                

Commission cited 8 AAC 45.030, a Board regulation, reasoning that this regulation  



                                                                                                          

"precludes the workers' compensation division, which includes the commission, from  



                                                                                                                                                              

providing documents/evidence at no charge to the appellant."  The Commission did not  



                                                                                               

identify which subsection of the regulation it was interpreting.  



                                                                                                                                                             

                         Eder argues that he was unable to get a complete copy of the record and  



                                                                                                                                                          

that, without a copy of the record, he "can't file an [excerpt] of the record."   Eder  



                                                                                                                                                              

disagrees with the Commission's interpretation of the Board's regulation; he says the  



                                                                                                                                                                  

Commission "lies when they say that they are required by state [l]aw not to get [him] a  



                                                                                                                                                              

copy of [the] 'whole record' [so he] . . . could write [his] opening brief" because the  



                                                                                                                                                 

regulation says "may" rather than "shall."  Eder also appears to argue that he submitted  



                                                                                                                                                    

"a  very  casual"  rough  draft  of  a  brief  to  the  Commission  and  complains  that  the  



                                                                                                                  14  

                                                                                                   

Commission denied him more time to complete the briefing. 



                         M-K Rivers argues that the Commission's decision should be upheld under  

                                                                                                                                                          



the abuse of discretion standard because the Commission properly applied applicable  

                                                                                                                                                



statutes  and  regulations.                        It  also  argues  that  Eder  did  not  show  good  cause  to  the  

                                                                                                                                                             



Commission because Eder's "Show of Good Cause contained no basis upon which good  

                                                                                                                                                           



             13          8AAC57.170providesthat"[p]arties                                       shall prepareexcerpts                    ofrecord"that       



are due at the same time as their briefs.                                       8 AAC 57.180 lists certain documents that                                   

"must" be in the excerpt of record.                  



             14          We assume this assertion is related to the documents Eder filed with his  

                                                                                                                                                              

third motion for extension of time.  

                                                         



                                                                               -8-                                                                        7130
  


----------------------- Page 9-----------------------

 cause could be found."                                                                M-K Rivers also cites a Board regulation, 8 AAC 45.030(c),                                                                                                                                  



 requiring an appellant to pay the cost of preparing the record on appeal as a basis to                                                                                                                                                                                                                           



justify the Commission's decision.                                                                                                 It argues that Eder was not adequately diligent in                                                                                                                             



 pursuing the appeal, that the Commission provided him adequate time to file a brief, and                                                                                                                                                                                                                    



 that continued delay would frustrate the purpose of providing "a 'prompt, fair, and just                                                                                                                                                                                                                   



 disposition' of the appeal."                                        



                                                 We disagree with M-K Rivers's contention that the Commission properly                                                                                                                                                                     



 applied the applicable regulations.  Even assuming that the Board's regulation applies                                                                

 to   the   Commission,15                                                             the  regulation  does  not  prohibit  the  Division  of  Workers'  

                                                                                                                                                                                                                                                                                     



 Compensation from waiving copying fees for indigent parties.  The first subsection of  

                                                                                                                                                                         



 the regulation provides:  "The division will charge no fees for any act done by it except  

                                                                                                                                                                                                                                                                                              



 (1)  reasonable  duplication  fees  may  be  charged  for  copying  board  files,  papers,  

                                                                                                                                                                                                                                                                                             

 documents, orders, or decisions . . . ."16 

                                                                                                                                                                                                                             

                                                                                                                                                 The regulation then permits the division, "for  



                                                                                                                                                                                                                                                                       

 reasons of administrative convenience," to "refuse to duplicate or copy material for a  



                                                                                                                                                                                                                                                                                                  

 person, provided the material sought is available for copying at a division office during  



                         15                      By its terms, 8 AAC 45.030 applies to the "division," which is defined as                                                                                                                                                                                        



 "the   division   of   workers'  compensation   within   the   administrative   branch   of   the  

 Department    of    Labor    and    Workforce    Development."       8    AAC    45.900(a)(8).   

 8 AAC 45.030 was most recently amended in 1983,                                                                                                                                                see  Alaska Administrative Code,                                                                   

 Register 86 (July 1983), long before the Commission's creation,                                                                                                                                                                       see  ch. 10,  8, FSSLA                                

 2005,   and   is   in   a   part   of   the   Alaska   Administrative   Code   entitled   "Compensation,  

 Medical Benefits, and Proceedings Before the Alaska Workers' Compensation Board."                                                                                                                                                                                                                                           

 See  8 AAC pt. 3, ch. 45 (2011).                                                                                  Alaska Statute 23.30.008(c) allows the Commission to                                                                                                                                           

 promulgate "regulations implementing the commission's authority and duties under [the                                                                                                                                                                                                                      

 Alaska Workers' Compensation Act], including rules of procedure . . . for proceedings                                                                                                                                                                                       

 before the commission."                                                                       The Commission has promulgated regulations setting out                                                                                                                                                       

 procedural rules in appeals to it,                                                                                          see, e.g.                     , 8 AAC 57.090, so it is not clear why the                                                                                                        

 Commission considered itself bound by 8 AAC 45.030 here.                                                                                                                                                 



                         16                      8 AAC 45.030(a).  8 AAC 45.030(a)(2) permits the division to charge for  

                                                                                                                                                                                                                                                                                                               

 duplicating tapes.  

                                                                   



                                                                                                                                                        -9-                                                                                                                                             7130
  


----------------------- Page 10-----------------------

                                                                                                                         17  

normal business hours."                                                                                                           And 8 AAC 45.030(c), the regulatory subsection M-K Rivers                                                                                                                                                                                                                        



cites in its brief, requires an appellant to "pay the cost of preparing the record on appeal"                                                                                                                                                                                                                                                                                                                 



and provides that "[t]he division will not certify the administrative record until all costs                                                                                                                                                                                                                                                                                                                              



of record preparation have been paid."                                                                                                                             



                                                                   Although M-K Rivers relies on the part of the regulation about preparing                                                                                                                                                                                                                                                        



the record on appeal, we see no indication that there was any difficulty in preparation of                                                                                                                                                                                                                                                                                                                                                



the record for appeal. The Board supplied the record to the Commission promptly - the                                                                                                                                                                                                                                                                                                                                                



Board's record was filed less than a month after Eder's notice of appeal - and nothing                                                                                                                                                                                                                                                                                                                       



in the record suggests either that Eder was required to pay for preparation of the record                                                                                                                                                                                                                                                                                                                          



or that his failure to pay for preparation was in any way connected to the dismissal. And                                                                                                                                                                                                                                                                                                                                    



if 8 AAC 45.030(c) was the basis for the Commission's refusal to provide Eder with a                                                                                                                                                                                                                                              



copy of the record, the Commission's determination that it was bound by the provision                                                                                                                                                                                                                                                                                                              



related to payment for copying would be inconsistent with its treatment of transcription                                                                                                                                                                                                                                                                                            



fees. 8 AAC 45.030(c) requires the party requesting a transcript to pay the transcription                                                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                                                                                                                                                                                                    18  and the  

fee, but the Commission's regulation permits it to waive transcription fees,                                                                                                                                                                                                                                                                                                                                                       



Commission in fact waived the fee here.  Assuming any part of 8 AAC 45.030 can be  

                                                                                                                                                                                                                                                                                                                                                                                                                                       



read as prohibiting provision of free copies to an indigent litigant, we fail to see why the  

                                                                                                                                                                                                                                                                                                                                                                                                                                     



Commission would feel bound by that part of the regulation when it considered itself  

                                                                                                                                                                                                                                                                                                                                                                                                                          



able to override the same regulation with respect to transcription fees.  

                                                                                                                                                                                                                                                                                                                                                                  



                                                                    The remainder of the regulation permits the division to charge for copying  

                                                                                                                                                                                                                                                                                                                                                                                                           



and to refuse to make the copies itself as long as it makes the record available for  

                                                                                                                                                                                                                                                                                                                                                                                                                                   



                                  17                                8  AAC  45.030(b).  



                                  18                                8  AAC  57.090(c)(2).  



                                                                                                                                                                                                                -10-                                                                                                                                                                                                        7130  


----------------------- Page 11-----------------------

                                                      19  

copying at a division office.                             Nothing in the regulatory language prohibits the division                                     



from waiving copying costs, and the Board's action here in providing Eder with a CD   



containing part of the record suggests that the division has not interpreted the regulation                                                         



as the Commission did.                         Furthermore, we note that the Commission itself made a copy                                                    

                                                                                                                               20   We thus conclude  

of the record at no charge to an indigent litigant in an earlier case.                                                                                



that the regulation does not forbid the Commission from waiving copying costs for an  

                 

indigent litigant,21  

                                    and we note we have previously found a denial of due process when  

                                                                                                                                                             



an agency  dismissed an administrative appeal after failing to provide access to the  

                                                                                                                                                                 

administrative record.22  

                              



                                                                                                                                                         

                          2.	          The  Commission  did  not  make  adequate  findings  to  permit  

                                                                                                 

                                       review of a finding of  good cause.  



                                                                                                                                                     

                          M-KRivers also argues that theCommissionproperly appliedits regulation  



                                                                                                                                                         

about dismissal for failure to prosecute an appeal and that dismissal was justified because  



                                                                                                                                                           

Eder failed to show good cause why his appeal should not be dismissed.  M-K Rivers  



             19           8  AAC  45.030(a)-(b).  



             20           Khan  v.  Adams  &  Assocs. ,  AWCAC  Dec.  No.  057  at  4  (Sept.  27,  2007).  



             21           As  we  noted  above,  this  court  provided  Eder  with  a  scanned  copy of  the  



record.  In his brief before us, he indicates that he wants a hard copy of the record rather                                                                 

                 

                                                                                                                                                             

than an electronic one.  He does not explain why he needs a hard copy of the entire  

                                                                                                                                                             

record, and we see no need to provide him with one in light of the large number of pages  

                                                                                                  

in it that are duplicate records from his California case.  



             22           Copeland v. Ballard, 210 P.3d 1197, 1204-06 (Alaska 2009) (observing  

                                                                                                                                                   

that litigants "have a strong interest in accessing the record" because "it is the platform  

                                                                                                                                                       

upon which they must build their case"); see also Bustamante v. Alaska Workers' Comp.  

                                                                                                                                                           

Bd., 59 P.3d 270, 273 (Alaska 2002) (reversing superior court's decision not to waive  

                                                                                                                              

transcription fees for indigent litigant); Baker v. Univ. of Alaska, 22 P.3d 440, 442-43  

                                                                                                                                                

(Alaska 2001) (reaffirming principle "that 'the size of a party's bank account' should not  

                                                                                                                                                                  

 'foreclose [that] party's opportunity to be heard' " (citation omitted) (quoting Peter v.  

                                                                                                                                                                    

Progressive Corp., 986 P.2d 865, 872 (Alaska 1999) (alteration in original)).  

                                                                                                                                  



                                                                                -11-	                                                                         7130
  


----------------------- Page 12-----------------------

lists the following factors the Commission has considered in other cases about good                                                                                                                                                                                                                                                



cause   to   dismiss   an   appeal:     "whether   appellant's  non-compliance   was   due   to  



circumstances beyond his control, whether appellant was somehow prevented from                                                                                                                                                                                                                                                     



complying, and whether appellant made a good-faith effort to comply." Acknowledging                                                                                                                                                                                                     



that   Eder   "cited   his   homelessness   and   financial   difficulties"   in   his   response   to   the  



Commission's Order to Show Good Cause, M-K Rivers nonetheless contends that Eder                                                                                                                                                                                                                                                     



made no good faith effort to comply with the Commission's deadlines pointing to the                                                                                                                                                                                                                                                        



"significant series of delays" and the "haphazard nature of his filings."                                                                                                                                                                               



                                                     Assuming the Commission adequately complied with its regulation about                                                                                                                                                                                                        

                                        23        the  Commission's  sole  rationale  for  dismissing  Eder's  appeal  was  its  

dismissal,                                                                                                                                                                                                                                                                                                                                  



interpretation  of  8  AAC  45.030  as  prohibiting  it  (or  the  Board)  "from  providing  

                                                                                                                                                                                                                                                                                                              



documents/evidence at no charge to the appellant." Aside from remarking about Eder's  

                                                                                                                                                                                                                                                                                                                              



"unfortunate" circumstances, the Commission made no findings about good cause.  It  

                                                                                                                                                                                                                                                                                                                                               



made no findings about whether Eder had made a good faith effort to comply with its  

                                                                                                                                                                                                                                                                                                                                              



deadlines or whether Eder had not complied due to circumstances beyond his control.  

                                                                                                                                                                                                                                                                                                                        



Unlike the pro se litigant in Khan v. Adams & Associates, Eder timely filed a responsive  

                                                                                                                                                                                                                                                                                                          



                           23                        A   Commission   regulation   sets   out   several   necessary   steps  for  the  



Commission   to   take   before   it   may   dismiss   an   appeal   for   failure   to   prosecute.   

 8 AAC 57.250.                                                        "If an appellant fails to comply . . . with an order of the chair or                                                                                                                                                                                                    

commission," the first step is issuance of "a written notice to the appellant that specifies                                                                                                                                                                                                                         

the nature of the failure and states that the appeal may be dismissed . . . if the appellant                                                                                                                                                                                                                       

fails to take appropriate corrective action no later than 20 days after receipt of the                                                                                                                                                                                                                                                    

notice." 8 AAC 57.250(a). Here, the Commission did not wait for Eder to fail to comply                                                                                                                                                                                                                                    

with its order before it issued the written notice warning of possible dismissal - the                                                                                                                                                                                                                                                     

written notice was part of the order granting Eder's third request for an extension of time.                                                                                                                                                                                                                                                                

Eder could not have failed to comply with that order before the deadline in it, so it is                                                                                                                                                                                                                                                

unclear whether the Commission complied with the first step of its regulation.                                                                                                                                                                                                                                          



                                                                                                                                                                    -12-                                                                                                                                                             7130
  


----------------------- Page 13-----------------------

                                                                                                                                                    24  

pleading to the Commission's order to show good cause.                                                                                                   His request for access to the                                     



record   was   clear   even   if   his   other   pleadings   were   not,   and   it   was   unlikely   Eder's  



circumstances would change while the appeal was pending so that he could pay for either                                                                                                                              



copies of the record or travel to Alaska. Additionally, the Commission clerk documented                                                                                                             



a conversation with Eder that indicates he tried to obtain the remainder of the record                                                                                                                            



from the Board in December 2014.                                                                Because the Commission failed to make findings                                                                

related to good cause, we cannot "fill the gap" by making our own findings.                                                                                                                             25  



                                   WeacknowledgethatEder'spleadingsaredifficult to decipher,particularly  

                                                                                                                                                                                                      



when they are handwritten.  Nonetheless the pleadings he supplied to the Commission  

                                                                                                                                                  



indicated that he wanted a copy of the record and was making an effort to comply with  

                                                                                                                                                                                                                        



Commission procedures.  If the Commission doubted Eder's motivation in filing what  

                                                                                                                                                                  



he did or  thought it needed  more  evidence to  make findings,  it could have held  a  

                                                                                                                                                                                                                               

hearing26  or suggested some alternative way for him to comply with the appeals process.  

                                                                                                                                                                                                                                      



The Commission's rationale for failing to provide him with a copy was erroneous, and  

                                                                                                                                                                                                                          



it made no other findings about Eder's circumstances or lack of good faith.  

                                                                                                                                                                                        



V.                CONCLUSION  



                                   We  REVERSE  the  Commission's  decision  and  REMAND  for  further  

                                                                                                                                                                                                                 



proceedings.  



                  24               Khan, AWCAC Dec. No. 057 at 2-3.                                                       



                  25               See Bolieu v. Our Lady of Compassion Care Ctr.                                                                                      , 983 P.2d 1270, 1275                          



                                                                                                                                                                                                                                

(Alaska 1999) (observing that a remand is needed when the Board fails to make a  

necessary finding).   



                  26               See Lawson v. State, Workers' Comp. Div., AWCAC Dec. No. 110 at 4-7  

                                                                                                                                                                                                                           

(May 29, 2009) (describing hearing to ascertain reasons for late filing).  

                                                                                                                                                                         



                                                                                                            -13-                                                                                                      7130
  

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