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Kolkman v. Greens Creek Mining Co. (4/18/97), 936 P 2d 150
NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
ROBERT KOLKMAN, )
) Supreme Court No. S-6675
) Superior Court No.
v. ) 1JU-93-1698 CI
GREENS CREEK MINING CO., and ) O P I N I O N
ZURICH INSURANCE/CRAWFORD )
& COMPANY, ) [No. 4808 - April 18, 1997]
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Thomas M. Jahnke, Judge.
Appearances: T.G. Batchelor, Batchelor,
Brinkman & Pearson, Juneau, for Appellant.
Constance E. Livsey and Elizabeth D. Goudreau,
Faulkner, Banfield, Doogan & Holmes,
Anchorage, for Appellees.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices, and
Carpeneti, Justice pro tem.
CARPENETI, Justice pro tem.
Robert Kolkman challenges a decision of the Alaska
Workers' Compensation Board (Board) denying him benefits. The
Board found that he failed to give timely notice of his injury and
failed to meet the requirements for an exception to the notice
requirement. The superior court affirmed. Because we conclude
that Kolkman met the requirements for an exception to the notice
requirement, (EN1) we reverse the superior court's affirmance of
the Board's decision and remand for the Board to determine the
compensability of Kolkman's injury.
II. FACTS AND PROCEEDINGS
Robert Kolkman had worked as a miner for over twenty
years before Greens Creek Mining (Greens Creek) hired him to work
in Alaska in August 1989. His duties at Greens Creek encompassed
a wide variety of mining tasks. The work was very strenuous, and
included moving rock with hand tools, carrying fifty-pound powder
boxes, and drilling holes in the rock and loading them with
Kolkman was a former smoker whose father had apparently
died of a heart attack. Subsequent to Kolkman's heart attack which
is described below, it was discovered that he had elevated
cholesterol levels, a forty-five percent stenosis (narrowing) of
the interior descending coronary artery and a fifty percent
stenosis in the origin of the posterior descending artery.
On Friday, June 22, 1990, Kolkman was working the 4:00
p.m. to midnight shift. His activities included moving loose ore
with a hand tool ("mucking") and driving a loader. Kolkman claims
he began to feel tired and ill after the mucking. (He had moved
about a ton of rock that day.) At the end of his shift, Kolkman
took a shower, as was his practice, before returning by boat to
Juneau. While in the shower, Kolkman claims he felt worse, felt
nauseous, and began to sweat and feel pain in his arms. He
described "pain that was so bad I didn't know what was wrong"and
thought he might be suffering from a "charlie horse"in his arms or
muscle spasms. He was sweating "real bad,"and experienced nausea:
"I felt like I wanted to throw up."
After he left the shower, the pain subsided a bit, and
Kolkman began to dress for his trip home. Kolkman told a co-worker
that he was feeling ill. The co-worker commented that he looked
ill and suggested that Kolkman visit the emergency medical
technicians (EMTs) at the mining facility, as did another co-
worker. He did so, describing all of his symptoms to the EMTs. An
EMT took Kolkman's blood pressure and pulse, which he found to be
normal. The EMT offered to let Kolkman lie down, but Kolkman
declined, preferring to take the bus and then a boat to return to
his home in Juneau. (EN2)
Kolkman arrived home about 2:30 a.m., ate some popcorn,
and went to bed. At that point, although Kolkman thought he was
still feeling a "dull ache"in his arms, the nausea and sweating
had gone. At 6:00 a.m., he got up and had some coffee, but then
became nauseous and began vomiting. Then the pain came back to his
arms. Kolkman then woke his wife, Pearl Kolkman, who took him to
the emergency room at Bartlett Memorial Hospital.
Kolkman was placed in the care of Dr. William Cole, a
specialist in internal medicine. While in the coronary care unit,
Kolkman suffered an anterior wall myocardial infarction, a heart
attack, at 11:13 a.m. Saturday, June 23, 1990. Kolkman developed
cardiac arrhythmia and required cardiac resuscitation. His
condition was unstable, so that same day he was transferred by air
ambulance to a Seattle hospital.
Shortly after Kolkman was taken to the Juneau hospital
early Saturday morning, friends of the Kolkmans called Greens Creek
to tell of Kolkman's hospitalization and to explain his absence
from work. Two days later Pearl Kolkman spoke with Greens Creek
management personnel, including the mine superintendent, the mill
manager (who was her husband's supervisor), and the head of
personnel, and told them of the heart attack. Pearl Kolkman was
told everything would be "taken care of."
Kolkman was treated in Seattle by Dr. Milton English, a
specialist in cardiovascular disease. His condition stabilized,
but lack of oxygen to the heart had killed part of the heart and
caused permanent damage. He remained in the Seattle hospital until
July 4. He then returned to Juneau.
On September 4, Kolkman returned to work as a miner for
Greens Creek. Dr. Cole gave Kolkman a work release which limited
his physical activities because of the heart damage. He had to
miss work from September 13 through September 25, for medical tests
In February 1991 Kolkman was called into a meeting with
Greens Creek management about his absences and physical
limitations. Kolkman soon became afraid that he would be fired
because of his physical limitations, so during an April 22, 1991,
visit with Dr. Cole, he asked about other types of work.
During this meeting, Dr. Cole told Kolkman that his heart
attack might be work related. He suggested that Kolkman contact
Dr. English, his treating cardiologist, to determine whether the
heart attack entitled him to workers' compensation. On April 29,
Kolkman consulted an attorney and requested clarification from Dr.
Cole. Dr. Cole provided a letter, dated May 6, 1991, explaining
the nature of the heart attack. On May 14, Kolkman wrote to Dr.
English for confirmation of Dr. Cole's opinion that the heart
attack was work related. Dr. English responded with a letter dated
September 12, which gave his opinion that the heart attack was work
Kolkman filed a Report of Injury on June 11, 1991, and
his attorney filed an Application for Adjustment of Claim (AAC)
that same day. The AAC requested temporary total disability
benefits from June 23, 1990 to September 20, 1990, permanent
partial disability benefits, medical costs, vocational
rehabilitation, and attorney's fees.
A hearing before the Alaska Workers' Compensation Board
took place in January 1992. The Board heard testimony from the
Kolkmans, Greens Creek supervisors, and Greens Creek's medical
expert Dr. Preston, and received deposition testimony from Dr. Cole
and Dr. English. By a 2-1 decision the Board found that Kolkman's
claim was not barred by AS 23.30.100, (EN3) and that his heart
attack was work-related and compensable. Greens Creek appealed.
The superior court issued a Memorandum of Decision and
Order (Order) vacating the Board's decision. The Order affirmed
the Board's decision regarding the admissibility of expert medical
testimony, reversed the Board's determination that the presumption
of compensability had not been rebutted by Greens Creek, and
remanded for further consideration the determination that Kolkman's
late filing was not time barred.
On remand, the Board found that Kolkman had not met the
deadline for filing a claim. Thus, the Board held that the claim
was barred unless it met one of the statutory exceptions. The
Board found that Greens Creek "did not have knowledge of any facts
about Employee's heart attack which would have indicated to a
reasonable conscientious manager that a potential workers'
compensation claim may be involved." The Board also found that
Greens Creek suffered prejudice from the delay. Thus, the Board
found that Kolkman's failure to serve notice of injury within
thirty days could not be excused under AS 23.30.100(d)(1). The
Board also found that Kolkman offered no good reason for failing to
provide notice, and thus did not meet the requirements for the
exception found in AS 23.30.100(d)(2). Because the Board found the
claim was time barred, it did not reach the issue of whether
Kolkman presented sufficient evidence to prove his injury was
Kolkman appealed to the superior court. The superior
court affirmed. The court found substantial evidence to support
the Board's determination that Greens Creek did not know of the
work-related nature of Kolkman's heart attack. The court noted
that the Board appeared to have used the wrong time period for
determining whether Greens Creek had been prejudiced. But the
superior court also noted that a remand was unnecessary because
Kolkman failed to show that Greens Creek knew of the work-related
nature of his injury, and thus he could not take advantage of
subsection .100(d)(1) even if Greens Creek had not been prejudiced.
The superior court held that the exception in subsection .100(d)(2)
gives the Board wide discretion, and that its decision in this case
was not an abuse of that discretion. Finally, the court rejected
Kolkman's argument that the Board had exceeded the authority
granted on remand. This appeal followed.
A. Standard of Review
We independently review the superior court's decision.
Because the superior court acted as an intermediate court of
appeals, this court will not give deference to its ruling in favor
of the Board's decision. See Schmidt v. Beeson Plumbing and
Heating, Inc., 869 P.2d 1170, 1175 n.6 (Alaska 1994) (citing Hester
v. State, Pub. Employees' Retirement Bd., 817 P.2d 472, 474 (Alaska
A factual decision of the Board is reviewed on the
substantial evidence standard: the Board will be affirmed if
"substantial evidence exists to support the Board's findings of
fact." Yahara v. Construction & Rigging, Inc., 851 P.2d 69, 72
(Alaska 1993) (citing Morrison v. Afognak Logging, Inc., 768 P.2d
1139, 1141 (Alaska 1989)). "Substantial evidence is that which a
reasonable mind, viewing the record as a whole, might accept as
adequate to support the Board's decision. On review, the court
does not independently reweigh the evidence."Yahara, 851 P.2d at
72 (citations omitted). In fact, "[t]he court should only
determine whether such evidence exists, and not choose between
competing inferences." Municipality of Anchorage, Police and Fire
Retirement Bd. v. Coffey, 893 P.2d 722, 726 (Alaska 1995), (citing
Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska
1992), and Interior Paint Co. v. Rodgers, 522 P.2d 164, 170 (Alaska
B. Whether Kolkman's Failure To Give Notice of His Injury
Within 30 Days Should Be Excused Because Greens Creek Had
Knowledge of the Injury and Was Not Prejudiced by the
Failure To Give Notice
Alaska Statute 23.30.100 provides that an employee who
suffers a work-related injury must give notice to the board and his
or her employer within thirty days. (EN4) AS 23.30.100(a).
However, failure to give notice does not bar a claim if the
employer "had knowledge of the injury"and "the board determines
that the employer or carrier has not been prejudiced by failure to
give notice." AS 23.30.100(d)(1).
1. Employer knowledge of the injury
There is no doubt that Greens Creek knew that Kolkman had
suffered a heart attack. Within a few days of the event, the mine
superintendent, the mill manager (and Kolkman's supervisor) and the
head of personnel all were advised of Kolkman's heart attack.
Following our decision in State v. Moore, 706 P.2d 311,
312 (Alaska 1985), however, simple knowledge on the employer's part
has not been enough. In that case, the employer State of Alaska
argued that "'[t]here must in addition be some knowledge of
accompanying facts connecting the injury or illness with the
employment . . . indicating to a reasonably conscientious manager
that the case might involve a potential compensation claim.'"
State v. Moore, 706 P.2d 311, 312 (Alaska 1985) (quoting 3 A.
Larson, Workmen's Compensation Law sec. 78.31(a), at 15-100 to 15-
109 (1983)). (EN5) We analyzed that case with that additional
requirement in mind.
It was this latter requirement which was at the heart of
the dispute below. While the Board originally found that "members
of Green's [sic] Creek management were aware of Employee's heart
attack soon after it occurred,"on remand from the superior court
the Board expanded its finding to address whether the employer knew
or should have known that the injury was work-related:
We now find that Employer did not have
knowledge of any facts about Employee's heart
attack which would have indicated to a
reasonable conscientious manager that a
potential workers' compensation claim may be
involved. . . .
The only incident of which we are aware
that could have led Employer to believe that
Employee's heart attack was related to his
employment was Employee's visit to the EMT
after the end of his shift. We find that
Employee's brief visit to the EMT was not
sufficient to indicate to the Green's [sic]
Creek management that a potential workers'
compensation claim could be involved.
It was this finding that the employer was not aware of the work-
relatedness of the injury, based upon this court's opinion in State
v. Moore, which the superior court reviewed to determine whether it
was supported by substantial evidence. Finding that it was, the
superior court affirmed the Board on this issue.
After a careful review of the question, we have
determined that, to the extent that State v. Moore may be read to
add a third requirement to the two-part test of the statute, (EN6)
the case should be disapproved. The statute provides that failure
to give notice will not be a bar where the employer has knowledge
of the injury and has not been prejudiced by failure to receive
notice. State v. Moore infers an additional requirement - that the
employer must have, in addition to knowledge of the injury,
knowledge of the work-relatedness of the injury. Adding the
requirement of work-relatedness has a great potential to lead to
injustice, for several reasons.
First, there is a short period for notice - thirty days -
from the date when knowledge (or reason to know) that the injury
is employment-related is acquired by the employee. In order to
relieve the potential harshness of this rule, the legislature
created the exceptions in AS 23.30.100(d). Any interpretation of
the statutory exceptions to this notice requirement which creates
an obstacle to the applicability of the exceptions carries the
potential to bar meritorious claims.
Second, the employee's knowledge (or reason to know) of
the work-relatedness of the injury is often gradually and
undramatically acquired, and the employee may not realize that he
or she has to take quick action in order to preserve his or her
rights. Again, a restrictive interpretation of the exceptions to
this rule carries a substantial possibility of injustice.
Third, it is often difficult to fix with precision the
day from which the thirty-day notice requirement begins to run. A
statutory exception designed to relieve the harsh effects of the
short time requirements of AS 23.300.100 should not be interpreted
so as to add a bar to the exception's applicability.
Fourth, AS 23.30.100(d)(1), which mentions knowledge of
the injury or death but does not mention work-relatedness, stands
in stark contrast to the section which was enacted with it and
which immediately follows it, AS 23.30.105(a), which speaks of both
knowledge of the injury and knowledge of its work-relatedness.
(EN7) Given that these two subsections, enacted concurrently and
placed next to each other in the statute, treat knowledge of work-
relatedness so differently, the strong inference is that the
legislature did not intend to add the requirement of knowledge of
work-relatedness to the requirement of knowledge of the injury in
Finally, this conclusion is consistent with the way in
which the law generally treats notice of accident requirements in
insurance policies. They operate to bar claims only when the
intended recipient of the notice is prejudiced. See Weaver Bros.
v. Chappel, 684 P.2d 123, 125 (Alaska 1984). Larson notes that in
many acts "there is a general provision that want of timely notice
of injury shall not be a defense if it resulted in no prejudice to
the employer." sec. 78.32(b), p. 15-188 (1996). Our legislature
has decided to go one step beyond the acts mentioned by Larson (and
one step beyond the approach taken by the common law with respect
to notice requirements in insurance policies) and add a requirement
which is in addition to lack of prejudice -- knowledge of injury.
Given that many states have very workable systems relying simply on
lack of prejudice and that this is the common law result in the
analogous area of insurance law, it is very difficult to justify a
court-made addition to the second requirement of knowledge.
For all of these reasons, to the extent that State v.
Moore may be read to have accepted the additional requirement of
the employer's knowledge of the work-relatedness of the injury in
determining whether the exception of AS 23.30.100(d)(1) applies, we
disapprove that case.
2. Employer prejudiced by late notice
We must next consider whether substantial evidence
supports the Board's determination that Greens Creek was prejudiced
by the late filing. As the superior court noted, the Board's order
indicated that it evaluated prejudice based on the time that passed
between the date Kolkman suffered his heart attack (June 1990) and
the date he gave written notice to his employer (June 1991). The
superior court correctly pointed out that "[t]he board should have
considered only the delay between the deadline for Kolkman's notice
of injury (May 22, 1991) and the date when Kolkman finally gave
notice (June 11, 1991) in regard to whether Greens Creek was
prejudiced by late notice."
There was no evidence, much less substantial evidence, to
support the conclusion that Greens Creek was prejudiced by the
delay in notice between May 22, 1991 and June 11, 1991. The
purpose of the notice requirement is to enable the employer "to
timely investigate the . . . injury and to afford the employer the
opportunity to extend prompt medical treatment to prevent or
minimize resulting disability." Moore, 706 P.2d at 312. In this
case, because Kolkman did not know of the work-related nature of
the injury until almost a year later, his obligation to provide
notice did not arise until that time. Sullivan, supra n.4, 518
P.2d at 761. Even if Kolkman had given notice by May 22, 1991
(within thirty days of his April 22, 1991 discovery of the work-
related nature of the heart attack), no evidence suggested that
Greens Creek would have been in a better position to investigate
than it was on June 11, 1991 when Kolkman did file. (EN8)
In sum, we hold that Kolkman may not be denied the
shelter of the subsection .100(d)(1) exception because he failed to
file timely notice. Such action fails to properly apply the
statute and does not serve the purpose of the statute.
C. Whether the Board's Decision that Kolkman Presented No
Good Reason Why Notice Could Not Be Given Was Supported
by Substantial Evidence
Kolkman seeks relief in another exception to the formal
notice requirement. Alaska Statute 23.30.100(d)(2) provides that a
failure to give notice will not bar a claim "if the board excuses
the failure on the ground that for some satisfactory reason notice
could not be given." It is not necessary to reach this issue given
our resolution of the prior issue.
D. Whether the Board Erred in Declining to Reach the Issue
of the Compensability of Kolkman's Claim
In light of its conclusion that Kolkman was not eligible
for either exception to the notice requirement, the Board did not
address the compensability issue in its latest Decision and Order.
Because we have concluded that Kolkman was entitled to the
exception to the notice requirement, the Board must reach the
Because Greens Creek had knowledge of the injury and it
suffered no prejudice from Kolkman's failure to file a timely
notice of injury, we conclude that Kolkman's claim is not barred.
This matter is REMANDED to the superior court with directions to
remand it to the Board for further proceedings consistent with this
1. We acknowledge that our conclusion rests in substantial part
on a change in the law as it existed at the time the superior court
rendered its decision. Specifically, we today disapprove State v.
Moore, 706 P.2d 311 (Alaska 1985), to the extent that it may be
read to require that an employer have knowledge that the employee's
injury is work-related to satisfy the exception of
2. The Greens Creek mine is located in a remote area, on
Admiralty Island about forty minutes from Juneau by boat.
3. AS 23.30.100 provides that the employee must give notice of
an injury to the Board and his or her employer within thirty days.
AS 23.30.100(a). But it also provides two exceptions that are at
issue here. First, failure to give notice does not bar a claim if
the employer "had knowledge of the injury"and "the board
determines that the employer or carrier has not been prejudiced by
failure to give notice." AS 23.30.100(d)(1). The other exception
provides that a failure to give notice will not bar a claim "if the
board excuses the failure on the ground that for some satisfactory
reason notice could not be given." AS 23.30.100(d)(2).
4. This court has found that the thirty-day limitation period is
tolled "until by reasonable care and diligence it is discoverable
and apparent that a compensable injury has been sustained." Alaska
State Hous. Auth. v. Sullivan, 518 P.2d 759, 761 (Alaska 1974)
(quoting 3 A. Larson, The Law of Workmen's Compensation sec. 78.41,
at 60 (1971)).
5. Moore also noted that
it is not reasonable to expect an employer to
launch an investigation every time a foreman
hears someone complain of a pain or sees
someone get a bump, and such knowledge does
not therefore satisfy the objectives of the
notice statute. On the other hand, if the
employer's representatives are aware of the
circumstances surrounding the occurrence of
the injury, and know as much about the
symptoms as the claimant himself could report,
the knowledge will be deemed sufficient even
if the employer and employee both
underestimate the seriousness of the injury.
Moore, 706 P.2d at 312 (quoting Larson, supra, at 15-113).
6. A close reading of State v. Moore shows that the language from
that case which suggested that that the employer must be aware of
the work-relatedness of the injury was no more than dictum. In
Moore, the employer argued that knowledge of the work-relatedness
of the injury (on the employer's part) was necessary, and further
asserted that it had no knowledge of the work-relatedness of the
injury. After a review of the facts, this court found that the
employer had such knowledge. We did not add the requirement of
employer knowledge of work-relatedness; we merely found that if
such knowledge was required, it was met on the facts of that case.
7. Subsection .105(a), which establishes time limits for filing
claims, provides that the time period begins when the employee has
"knowledge of the nature of the employee's disability and its
relation to the employment." (Emphasis added.)
8. Under these circumstances, there is no need to remand this
aspect of the case -- whether Greens Creek was prejudiced by the
delay between May 22, 1991 and June 11, 1991 -- for further Board