Appellee was injured in an industrial accident and received from his employer, the appellant, medical treatment and temporary total disability compensation. On March 9, 1964, the Alaska Workmen's Compensation Board denied appellee's claim for compensation for permanent partial disability.
Appellee appealed the Board's decision to the superior court. On August 7, 1964, while the appeal was pending, the Board entered the following ex parte order:
Following the entry of the Board's order, appellant moved the superior court to enjoin the Board from carrying out such order, and shortly thereafter, filed a motion for summary judgment seeking affirmance of the Board's decision of March 9, 1964 which denied appellee compensation for permanent partial disability. The court denied the motions for an injunction and for a summary judgment, and stated:
Appellant has appealed to this court, claiming that the trial court erred in failing to grant appellant's motions for an injunction and for summary judgment, and in remanding the case to the Alaska Workmen's Compensation Board.
Before discussing appellant's contentions, we must pass upon a procedural aspect of this case. Appellee argues that there is no final judgment from which an appeal may be taken.
This action by the trial judge could hardly be considered interlocutory. The judge did not stay the proceedings in the superior court and retain jurisdiction pending further action by the Board, but instead, terminated the proceedings by remanding the case and refusing to decide the issue that had been presented. The question that had been raised on appeal from the Board's decision of March 9, 1964 could not be brought before the court again on a subsequent appeal, because the time for court review of that decision would have long since expired.
Appellant's main point on this appeal is that the court erred in refusing to enjoin the Board from carrying out its ex parte order of August 7, 1964, and in remanding the case to the Board to act upon such order. The substance of appellant's argument is that the Board's order was a nullity because after an appeal from the Board's decision had been taken, the court had sole and exclusive jurisdiction over the case.
It is the general rule that when an order of an administrative agency is appealed to a court, the agency's power and authority in relation to the matter is suspended as to questions raised by the appeal.
Operation of the rule is limited to situations where the exercise of administrative jurisdiction would conflict with the proper exercise of the court's jurisdiction. If there would be no conflict, then there would be no obstacle to the administrative agency exercising a continuing jurisdiction that may be conferred upon it by law.
Continuing jurisdiction over a compensation matter is conferred by law upon the Alaska Workmen's Compensation Board. AS 23.30.130(a) authorizes the Board to review a compensation case before one year after the date of the last payment of compensation or before one year after rejection of a claim, either upon its own initiative or upon application of a party in interest on the ground of change in conditions or because of the Board's mistake
The Board's ex parte order of August 7, 1964 directed the appellant to provide for a medical examination of appellee by a neurosurgeon and an orthopedic surgeon. There is nothing on the face of the order or in the record to show that the Board was attempting to exercise its continuing jurisdiction over the case as to the question of whether appellee was entitled to permanent partial disability compensation. That is the question that had been decided adversely to appellee's contentions by the Board in March 1964 and was the basis for the appellee's appeal to the superior court. The question before that court was whether the Board's finding of no permanent partial disability was supported by substantial evidence,
We cannot hold that the Board's ex parte order was null and void, as appellant contends it was. The exercise of administrative jurisdiction in ordering further medical examination and treatment while the case was pending in the superior court was not inconsistent with the proper exercise of the court's jurisdiction, because the Board's action did not interfere or conflict with the exercise of the court's jurisdiction over the case.
The ex parte order, however, is subject to criticism. It was entered, apparently without notice to any of the parties or their counsel. Assuming that the Board had good reason for the action it took regarding further medical examination, common sense and orderly procedure would require that the Board notify the parties and their counsel of its intentions to reconsider the medical aspect of the case, and then following reconsideration to disclose its reasons for the decision it made in order that one might know beyond any question that this exercise of the Board's jurisdiction did not and was not intended to conflict with the exercise of the court's jurisdiction over the matter raised on the pending appeal.
Although we are unable to say that the appeal pending in the superior court caused the Board's ex parte order to be a nullity, we are obliged to say that the court's action in remanding the case to the Board on the basis of such ex parte order was a mistake. The court relied upon the authority to remand conferred by the Administrative Procedure Act, AS 44.62.570(d)(1). That was erroneous, because the power of the court to remand under that section of the Act depends upon a finding that "there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded
Once the appeal was taken, jurisdiction over the subject matter of the appeal was conferred upon the court. The court then had a power to exercise which it could not abdicate. The court's error consisted in its refusal, by remanding the case to the Board, to afford the parties the determination which had been sought by the appeal, i.e., whether the Board's findings were supported by substantial evidence. It is the right of a litigant to call upon a judge to perform the judging which a statute or rule requires him to perform.
That the judge did have such a duty appears evident. AS 44.62.570(a) provides that an appeal from a decision of an administrative agency "shall be heard by the superior court sitting without a jury." (Emphasis supplied.) And AS 44.62.570(e) states that "The court shall enter judgment setting aside, modifying, remanding, or affirming the order or decision * * *." (Emphasis supplied.) Since the statutory ground for remand relied upon by the court is not present,
The appellant contends that the judge made a finding that the Board's decision of March 9, 1964 was supported by substantial evidence, and therefore that this court should direct the court below to enter a final judgment in conformity with such finding. The appellant bases its contention on a statement made by the judge at the time he took the case under advisement, prior to rendering his decision. The judge said:
The order denying appellant's motion for an injunction is affirmed. The order denying appellant's motion for a summary judgment and remanding the case to the Alaska Workmen's Compensation Board is set aside, and the case is remanded to the superior court for further proceedings consistent with the views expressed in this opinion.
See Alaska Mines & Minerals, Inc. v. Alaska Industrial Bd., 354 P.2d 376, 378 (Alaska 1960) (construing former statute, § 43-3-22 ACLA 1949).