An employee was injured three times over the span of five months while working as a pipe fitter for his employer. The employee fell twice, injuring his lumbar and cervical spine and his hip, and also complained of sharp pain in his right hand that doctors attributed to his work. After he was laid off from his Alaska job, the employee returned to his home in California, where he began chiropractic treatment for his spinal injuries. His employer initially paid benefits without an award; it filed a notice of controversion after its experts reported that the employee was medically stable and no longer in need of treatment. The Alaska Workers' Compensation Board held a hearing on the employee's claim for medical and disability benefits and decided that the employee was entitled to limited chiropractic benefits, denied the rest of his claims, and awarded him limited attorney's fees. The employee, through his attorney, also requested a reemployment eligibility evaluation. The Reemployment Benefits Administrator (RBA) determined that the employee was eligible for an evaluation. The employer appealed the RBA's decision to the board; the board found that the employee had filed his request too late and denied it.
The employee appealed both decisions to the superior court. The superior court affirmed the board's decisions in most respects. We reverse the board's denial of temporary total disability benefits, its denial of reimbursement for travel costs, and its reversal of the RBA's decision, and affirm the board's decisions on all remaining issues.
II. FACTS AND PROCEEDINGS
Rory Burke was employed as a pipe fitter on the Alaska pipeline for many years, working about half the year in Alaska and spending the rest of the year at his home in California. Burke worked for Houston NANA, L.L.C.
On November 19, 2001, Burke saw Dr. Joel Taatjes, a chiropractor in Petaluma, California, for treatment related to his work injuries. At that time, Dr. Taatjes completed a California workers' compensation form entitled "Doctor's First Report of Occupational Injury." Dr. Taatjes's report estimated that Burke's treatment would require approximately thirty visits over a twelve- to sixteen-week period, or between two to three visits per week. However, Burke received almost
Houston NANA arranged for a panel of doctors to conduct an independent medical evaluation (IME) on March 19, 2002. The panel consisted of a chiropractor, Dr. Willat, and an orthopedic surgeon, Dr. Ramsey. Both doctors examined Burke and reviewed his medical records. Both agreed that Burke was medically stable, at least with respect to his spinal injuries. Dr. Ramsey diagnosed Burke with mild right carpal tunnel syndrome and indicated that Burke's work had caused his neck, back, and carpal tunnel problems on a more-probable-than-not basis. In Dr. Ramsey's opinion, Burke had a slight permanent partial impairment but could return to his work as a pipe fitter as long as he was not required to use vibrating equipment on a sustained basis because of the carpal tunnel problems. Dr. Ramsey rated Burke as having a two percent whole person permanent impairment as a result of the carpal tunnel syndrome. Dr. Ramsey thought that Burke might need future medical care for his carpal tunnel syndrome, although he did not see a need for immediate medical care. Both Drs. Ramsey and Willat felt that further passive chiropractic treatments like the ones Burke was receiving from Dr. Taatjes were not necessary.
After the IME reports noted that Burke might have carpal tunnel syndrome, Dr. Taatjes referred Burke to a neurosurgeon, Dr. Guy Corkill. Dr. Taatjes evidently believed that the hand complaints were related to Burke's neck injuries and wanted Dr. Corkill to identify the reason for the continuing pain. Dr. Corkill examined Burke on May 28, 2002, diagnosed cervical disk disease, and referred Burke to Dr. Marcia Luisi, a specialist in physical medicine and rehabilitation, for electrodiagnostic studies. Dr. Luisi examined Burke on June 18, 2002, and performed nerve conduction studies to determine the cause of his right hand complaints. Dr. Luisi concluded that Burke had moderate right carpal tunnel syndrome and that the electrodiagnostic studies showed no indication of cervical radiculopathy. Following Dr. Luisi's report, Dr. Corkill recommended that Burke get a wrist splint. On August 23, 2002, Dr. Corkill advised Burke to have surgery for his carpal tunnel syndrome. Dr. James Glynn, an orthopedic surgeon, evaluated Burke on October 2, 2002, and recommended right carpal tunnel release. Burke had the surgery on November 18, 2002.
Dr. Taatjes referred Burke to Dr. Don Davis, a chiropractic neurologist, for a "permanent and stationary evaluation" on September 19, 2002. Based on his examination of Burke and his review of the medical records, Dr. Davis believed that Burke was permanent and stationary, except for his right hand. He stated that in his opinion, Burke's chiropractic treatment up to that time had been appropriate and should continue on an "exacerbation basis." Dr. Davis did not feel that Burke could return to his work as a pipe fitter, noting restrictions on his ability to bend, lift, carry, push, pull, and squat. Dr. Taatjes adopted the report as his own.
Houston NANA filed a notice of controversion on May 3, 2002, based on the IME reports. It controverted temporary total disability (TTD) benefits after May 1, 2002, and all further chiropractic care and physical therapy. The controversion noted that the IME doctors had determined that Burke was medically stable as of March 19, 2002; it also stated that medical care for Burke's right carpal tunnel condition "as outlined in Dr. Ramsey's EME report" would be covered. A copy of the controversion notice was sent to Dr. Taatjes.
Burke filed a workers' compensation claim on June 26, 2002. In his claim, he requested TTD benefits from May 2, 2002 through medical stability, permanent partial impairment benefits, medical costs related to Dr.
Burke requested that the Alaska Workers' Compensation Board (the board) order a second independent medical evaluation (SIME) to address issues of treatment, functional capacity, and medical stability. Houston NANA agreed that an SIME was appropriate in Burke's case, so the board ordered one. Two SIME physicians evaluated Burke: Dr. Marvin Bloom, an orthopedic surgeon, and Dr. Scott Calzaretta, a chiropractor. Dr. Bloom stated that Burke would not improve further without cervical fusion surgery and that even with neck surgery, Burke would likely not be able to return to his former work as a pipe fitter. Dr. Bloom did not feel that further chiropractic treatment was indicated; he believed that Burke was medically stable as of December 2002. Dr. Bloom rated Burke as having an eight percent whole person impairment related to his spinal injuries. He did not specifically discuss the carpal tunnel syndrome in the conclusions in his report.
Dr. Calzaretta thought that limited chiropractic treatment was still appropriate in Burke's case but that the frequency of treatment needed to be decreased to one to two times a month rather than two to three times a week. Dr. Calzaretta agreed with Dr. Willat that Burke was medically stable with respect to his spinal injuries as of March 19, 2002. Dr. Calzaretta felt that Burke could return to work as a pipe fitter as long as he was "precluded from repetitive pneumatic activity with his right hand." He also thought that Burke should lift no more than forty pounds overhead to prevent possible injuries to his neck and back.
The board held a hearing on Burke's claim on September 4, 2003. Burke testified in person, and Dr. Taatjes testified telephonically. Burke argued that his treatment with Dr. Taatjes was reasonable and necessary, even though it was in excess of the treatment limits, because he had multiple injuries but continued to work and because the chiropractic care helped him avoid surgery and expensive pain medication. He also asserted that Houston NANA had waived its argument that the treatment plan was excessive because it did not specifically object to the form of the plan in its controversion notice: The notice stated only that the care was not necessary. Burke also contended that his carpal tunnel syndrome was not medically stable from May 2, 2002 through November 17, 2002, and that he should receive TTD benefits for that period of time.
Houston NANA called Burke's carpal tunnel argument a "red herring" and asserted that Burke was medically stable as of March 19, 2002. Houston NANA also argued that Burke had not met his burden of showing that his chiropractic care was reasonable and necessary, especially in light of the treatment standards set out in board regulations. In addition, it argued that Dr. Taatjes's treatment plans were inadequate in that they did not specify the frequency or duration of treatment.
The board issued its decision on October 3, 2003. It found that Burke was medically stable as of March 19, 2002, and was therefore not eligible for TTD benefits from March 19, 2002, until November 19, 2002, the day after he had surgery for right carpal tunnel syndrome. The board stated that, in accordance with Grove v. Alaska Construction and Erectors,
Before the board issued a decision on the TTD claim, Burke, through his attorney, wrote the Reemployment Benefits Administrator to request a reemployment eligibility evaluation. Acknowledging that the request was late, Burke set out "unusual and extenuating circumstances" to justify his tardy application. The unusual and extenuating circumstances were that (1) Burke suffered a series of injuries, not just a single injury, in his employment; (2) time loss benefits did not begin until November 19, 2001, more than thirty days after the last injury; (3) Burke thought he would be able to return to his work as a pipe fitter; and (4) no doctor had predicted within the first ninety days that Burke would not be able to return to his job at the time of injury. Burke also urged the RBA to reject any argument that the request for an eligibility evaluation was untimely under the board's discovery rule because, according to Burke, the plain meaning of the statute only required the RBA to make a determination of unusual and extenuating circumstances excusing a late-filed request. In response to Burke's request, Houston NANA wrote the RBA, arguing that Burke's request should be denied. On November 12, 2003, the RBA explained his interpretation of the statutory deadlines, determined that Burke had unusual and extenuating circumstances that justified his late request, and decided that Burke was entitled to an evaluation for reemployment benefits. The RBA noted that in the first ninety days after giving his employer notice of his injury, "there was no indication that rehabilitation might be needed." Houston NANA appealed the RBA's decision to the board. The board held a hearing on the reemployment benefits issue on March 10, 2004.
In its April 14, 2004 decision on the reemployment question, the board decided that the RBA had abused his discretion in finding that Burke was entitled to an eligibility evaluation. The board declared that it had a long history of applying a discovery rule in considering the statutory ninety-day deadline for applying for a reemployment eligibility evaluation. Under the board's discovery rule, the employee has ninety days from the date he has knowledge of his need for retraining to apply for an eligibility evaluation. The board determined that Burke had notice that he would need retraining at the latest on February 25, 2003, the date of Dr. Bloom's SIME report. Because Burke's request was made in September, it was deemed untimely; the board therefore reversed the RBA's decision and denied and dismissed Burke's request for an eligibility evaluation. The board did not review the RBA's determination that Burke had unusual and extenuating circumstances excusing his late-filed request, nor did it make any findings related to unusual and extenuating circumstances.
Rather than file a second appeal, Burke asked the superior court to amend his points on appeal to include the issues raised in the board's reemployment benefits decision. The court did so after receiving no opposition
III. STANDARD OF REVIEW
In an appeal of a decision of a superior court acting as an intermediate court of appeal in a workers' compensation case we independently review the board's decision.
A. Burke Is Not Entitled to Chiropractic Care that Exceeds the Regulatory Standards.
Burke argues that the board erred when it ordered Houston NANA to pay for only limited chiropractic treatment. He asserts that (1) Dr. Taatjes filed a treatment plan; (2) the chiropractic care he received was reasonable and necessary; and (3) Houston NANA was barred by estoppel or waiver from arguing that the treatment plan was in any way deficient. Houston NANA responds that the board is legally precluded from awarding benefits in excess of the regulatory treatment standards unless certain conditions are met, and, because Dr. Taatjes did not meet the conditions, it cannot be made to pay for the treatments. Specifically, Houston NANA asserts that Dr. Taatjes was required to file a treatment plan that conformed with the requirements of AS 23.30.095(c) within fourteen days of the beginning of his treatment of Burke; because his treatment plan did not conform to the statutory requirements, Houston NANA cannot be made to pay for treatments in excess of the regulatory standards. It also argues that the frequency standards are not a defense or statutory right that may be waived by an employer.
Alaska Statute 23.30.095(c) contains two provisions detailing the information a health care provider must supply in order to receive payment for continuing and multiple treatments of a similar nature. First, the health care provider or the employee must provide notice of injury and treatment to the board and the employer within fourteen days of commencement of the treatment.
The board has adopted a regulation establishing frequency standards that apply to all continuing treatments.
1. Dr. Taatjes failed to file an adequate treatment plan.
The parties do not dispute that Dr. Taatjes's chiropractic treatments were in excess of the regulatory standards and that he filed some type of treatment plan. The board refused to order Houston NANA to pay for the excess treatments because Dr. Taatjes did not file a treatment plan pursuant to AS 23.30.095. Burke claims that Dr. Taatjes filed a treatment plan that substantially complied with the requirements of AS 23.30.095(c), but he does not elaborate how the forms that Dr. Taatjes filed complied with the statute.
We agree with Houston NANA that Dr. Taatjes's filings do not meet the requirements of AS 23.30.095(c). Dr. Taatjes filed a California workers' compensation form within fourteen days of beginning his treatment of Burke; this form appears to meet the first requirement of AS 23.30.095(c), that the health care provider furnish notice to the board and employer that he will be providing medical care or treatment requiring continuing and multiple treatments of a similar nature. But because Dr. Taatjes treated Burke on a more frequent basis than permitted under the applicable regulation, Dr. Taatjes was additionally required to provide a treatment plan to both Burke and Houston NANA that included "objectives, modalities, frequency of treatments, and reasons for the frequency of treatments."
Dr. Taatjes's first filing did not suggest that Dr. Taatjes would be treating Burke more frequently than the regulatory standards: It stated that treatment would consist of thirty visits over a twelve- to sixteen-week period. The initial notice described the modalities of treatment but not the objectives. After the initial notice, Dr. Taatjes filed periodic progress reports on forms from the California Division of Workers' Compensation. Had he supplied all of the information
Burke implicitly argues that it would be inequitable to require Dr. Taatjes to conform to Alaska's statutory requirements because he had no way of knowing that Alaska had limits on the number of treatments. This argument is unavailing, however, because Dr. Taatjes had avenues available to him to comply with the statutory requirements. Although Dr. Taatjes practices in California, the record reflects that his office contacted the Alaska Workers' Compensation Board at one point about the possibility of a lien. In addition, his office apparently discussed possible differences between Alaska and California law with the compensation carrier. Furthermore, Dr. Taatjes could simply have completed the California progress reports completely and accurately.
Burke argues that the record does not contain substantial evidence to support the board's finding that there was no dispute about whether a conforming treatment plan was provided, because he disputed the adequacy of the treatment plan. Burke has never articulated how Dr. Taatjes's filings conformed to or even substantially complied with the statutory requirements for a treatment plan. Before the board, he only argued that Houston NANA was estopped from claiming that the treatment plan was nonconforming because it had not raised that issue in its notice of controversion. Substantial evidence thus supports the board's conclusion that it was undisputed that Houston NANA did not receive a conforming plan within fourteen days of treatment.
2. Houston NANA is not estopped from raising the adequacy of the treatment plan.
Burke also argues that Houston NANA should be estopped from raising the issue of the noncompliance of Dr. Taatjes's treatment plan because it did not explicitly do so in its notice of controversion. He contends that if Houston NANA had told Dr. Taatjes of the deficiencies in the plan, Dr. Taatjes could have "stopped or modified his treatments" or "changed his treatment plan to `conform' to NANA's perceived requirements." Houston NANA responds that failure to follow the statutory requirements for the treatment plan cannot be waived, citing Grove v. Alaska Construction and Erectors.
The board relied on Grove to deny Burke's claim for chiropractic treatment in excess of the frequency standards. It found that the frequency standards in the regulation could not be waived unless the treatment plan complied with the terms of AS 23.30.095(c), stating that, "[a]s in Grove, it has not been disputed that the employer was not provided with a treatment plan pursuant to AS 23.30.095 within fourteen days of the treatment."
Burke's argument is similar to the one we rejected in Grove. There, we explicitly rejected the notion that the employer has the burden of objecting to the frequency of an employee's medical treatments.
Although Burke argues that the board had express power to award treatment that exceeded the frequency standards, the board's power is limited to situations in which the statutory requirements of filing a conforming treatment plan are met. To accept Burke's argument that Houston NANA had the duty to tell Dr. Taatjes that the treatment plans did not conform to the statute would place the burden on the employer to object to the frequency of an employee's medical treatments; we explicitly rejected this construction of the statute in Grove.
3. Rebutting the presumption of compensability
Burke also argues that he is entitled to excess chiropractic care because Houston NANA did not rebut the presumption of compensability. As Burke correctly notes, the presumption of compensability applies to every element of a factual determination.
The presumption analysis does not apply to every possible issue in a workers' compensation case. We have previously held the presumption of compensability inapplicable when evaluating a reemployment plan because the parties agreed that the employee's claim was covered by the provisions of the workers' compensation statute and applying the presumption did not "promote the goals of encouraging coverage and prompt benefit payment."
Here, the board did not use the presumption analysis in evaluating Burke's chiropractic care claim. The presumption analysis might apply to the question whether any chiropractic care was necessary because that would raise the issue whether part of the claim was covered at all. It could also apply if a conforming treatment plan had been filed because the regulation related to excess treatment requires a factual determination about the efficacy of the treatment.
Even if the presumption analysis applied, Houston NANA rebutted the presumption of compensability with Dr. Willat's report, which stated that as of March 19, 2002, Burke no longer benefitted from passive chiropractic care of the type he was receiving from Dr. Taatjes. It was then incumbent on Burke to prove that further treatment was reasonable and necessary and that he was entitled to treatment in excess of the frequency standards. The board decided that
B. Substantial Evidence Does Not Support the Board's Denial of TTD Benefits from March 19, 2002 Through November 19, 2002.
Burke contends that he is entitled to TTD benefits from March 19, 2002, through November 18, 2002 because his carpal tunnel syndrome was not medically stable as of March 19, 2002, the date that the board determined he had reached medical stability. He alleges that substantial evidence does not support the board's finding of medical stability because evidence in the record shows that Burke was in fact being treated for his carpal tunnel syndrome prior to his carpal tunnel release surgery. In addition, Burke points out that his case is similar to Thoeni v. Consumer Electronic Services
In analyzing Burke's claim for TTD, the board found that Burke was entitled to the presumption of compensability that he was still temporarily totally disabled by virtue of his testimony and that of Drs. Davis and Corkill. It then found that Houston NANA had rebutted the presumption through the opinions of Drs. Calzaretta, Willat, and Ramsey that Burke was medically stable as of March 19, 2002.
The board then decided that Burke had not proven his claim. It rejected his argument that his carpal tunnel syndrome was not stable and was disabling from March 19 until his surgery. Its decision was based on two findings: (1) prior to the carpal tunnel surgery, "no treatment was being recommended for the right wrist," and (2) there was "insufficient evidence that the employee was precluded from working . . . due to the condition of his wrist." The board also stated that "the medical evidence in the record regarding the employee's wrist indicated that the symptoms were subsiding and that future treatment would only be appropriate if the wrist deteriorated." The board determined that Burke was medically stable as of March 19, 2002, based on the opinions of Drs. Calzaretta, Willat, Ramsey, and Bloom and concluded that Houston NANA had overpaid TTD benefits from March 19, 2002, through May 1, 2002.
Because Burke had been receiving TTD benefits, his disability presumptively continued, and Houston NANA had the burden of producing substantial evidence that Burke was no longer disabled.
The board also relied on the opinions of Drs. Bloom and Calzaretta in its decision. Dr. Bloom expressly stated that, in his opinion, Burke was medically stable as of December 2002. Although Dr. Bloom also said that Burke did not derive any benefit from chiropractic care after March 19, 2002, Burke's chiropractic care was unrelated to his carpal tunnel syndrome. The section of Dr. Calzaretta's report about medical stability deals only with Burke's spinal complaints, not his carpal tunnel syndrome, and does not constitute substantial evidence to rebut the presumption that Burke's wrist was not medically stable. Dr. Calzaretta describes Burke's carpal tunnel syndrome as "resolving," in contrast to his spinal injuries, which he describes as "maximally improved."
We also hold that Houston NANA did not present substantial evidence to rebut the presumption that Burke was unable to work.
C. The Board Abused Its Discretion in Denying Burke's Travel Costs.
Burke argues that the board abused its discretion in failing to award him his costs for traveling to Anchorage to attend his workers' compensation hearing in person. He asserts that because the board alone determines witness credibility, in-person testimony can be critical to a claimant's case and claims that there is no way to know in advance of a hearing whether the board will consider the presence of an applicant necessary. He points out the risks that a claimant takes in not appearing in person, such as production of surreptitiously recorded videos. Houston NANA responds that the issues in this case were narrow and related to medical testimony, so Burke should have known before the hearing that his credibility was not an issue.
The board can award "the necessary and reasonable costs relating to the preparation and presentation of the issues upon which the applicant prevailed at the hearing on the claim."
D. The Board Erred in Reversing the Reemployment Benefit Administrator's Decision.
Burke also appeals the board's second decision, in which the board reversed the determination of the Reemployment Benefit Administrator that Burke was entitled to a reemployment eligibility evaluation. Burke maintains that the plain meaning of 8 AAC 45.520 and former AS 23.30.041(c)
Houston NANA responds that the discovery rule is a reasonable interpretation of the workers' compensation statute because it furthers the statute's purpose of providing fair and prompt resolution of compensation cases. It asserts that substantial evidence supports the board's determination that Burke knew or should have known that he would not be able to return to his work as a pipe fitter by February 25, 2003, and argues that no unusual or extenuating circumstances existed under the regulation to excuse Burke's subsequent late filing.
The main issue Burke raises is the application of the following statute and regulation to his case. Former AS 23.30.041(c) provided:
The board adopted a regulation detailing how an employee should request a reemployment eligibility evaluation at the same time it promulgated the regulation defining unusual and extenuating circumstances.
Burke did everything that was required by the new regulations. His request for an eligibility evaluation was submitted more than ninety days after he gave notice of his
Before the two new regulations took effect in 1998, the board had developed through adjudication a discovery rule to be used in considering reemployment eligibility evaluation requests.
1. Whether the 1998 regulations, which did not explicitly contain a discovery rule, should be read as continuing the rule despite their silence
When the board promulgated its regulations interpreting former AS 23.30.041(c), it codified its prior decisions about what constituted an unusual and extenuating circumstance.
2. Whether the board had the power, in the face of its decision to adopt new regulations that did not include a discovery rule, to impose a discovery rule by adjudication
Burke asserts that the board cannot by adjudication "add requirements to the law that neither the legislature nor the executive branch in its rule-making power chose to add to the Act or regulations, respectively." We agree: If the board wished to add to the deadlines it explicitly set in the regulations — via adoption of a discovery rule — it was required to do so by regulation.
We have previously held that an administrative agency can set and interpret policy using adjudication instead of rulemaking, absent statutory restrictions and due process limitations,
Whether an agency action is a regulation is a question of law that does not involve agency expertise, so we apply our independent judgment.
Using these standards, we conclude that the board's discovery rule is a regulation that amends or supplements 8 AAC 45.510 and 45.520. The discovery rule, according to the board, implements, interprets, and makes more specific former AS 23.30.041(c),
The dissent argues that it was reasonable for the board to interpret its regulation as creating a new ninety-day period to request reemployment benefits and that it would be unreasonable to interpret the regulation to allow an unlimited time to file a request once an extenuating circumstance ended.
The dissent concludes that the board's determination that the new regulation contained a discovery rule was "readily predictable." But that conclusion ignores that the workers' compensation attorney commenting to the board
Because the board chose to establish by regulation the procedure an applicant for a reemployment eligibility evaluation must use, it is bound by those regulations unless and until it repeals or amends the regulation using the proper procedure.
Because substantial evidence does not support the board's conclusion that Burke was not entitled to TTD benefits from March 19 to November 19, 2002, we REVERSE the board's decision denying him TTD benefits for that period of time. We also REVERSE the board's refusal to order reimbursement for Burke's travel to attend the hearing and its reversal of the Reemployment Benefit Administrator's decision. We AFFIRM the board's decision in all other respects.
BRYNER, Justice, not participating.
MATTHEWS, Justice, dissenting in part.
Today's opinion holds that the board erred when it decided that the ninety-day period to request an eligibility evaluation for reemployment benefits starts when an employee knows or should know that his injury may permanently prevent him from returning to his job.
The board concluded that AS 23.30.041(c) required Burke to request an evaluation within ninety days after the point at which he reasonably should have known that he needed retraining. Since Burke knew by February 25, 2003, that he could not return to his job, and did not request an evaluation until September 11, 2003, 198 days later, the board held that Burke's request was untimely. The board's conclusion that the statutory ninety-day deadline began to run anew when Burke knew or should have known that he needed retraining was consistent with prior board rulings that "knowledge of the need for reemployment benefits re-triggers the running of the 90 day period to request these benefits." The board noted that its ruling was necessary in order to give meaning to the statute in accordance with the purpose of the legislature. It observed that under the reemployment benefit administrator's (RBA) conflicting interpretation, "an employee could request reemployment benefits years, or decades, after being advised of the need for retraining."
In my view the board's ruling was correct. Nothing in the regulations concerning subsection.041(c) undercut the validity of the board's prior rulings. Burke did not rely upon the APA — which requires agencies to act by promulgating regulations in certain circumstances. Further, the APA did not prohibit the board from ruling as it did.
The Discovery Rule
The court's discussion is, for me at least, hard to follow. One problem lies with the court's use of the term "discovery rule." A discovery rule is a rule relieving a claimant from compliance with a statutory limitations period where the claimant reasonably lacks the opportunity to have "discovered" sufficient information to file a claim.
The Board's Retriggering Ruling Followed Established Law
Under AS 23.30.041(c) employees had ninety days to apply for an eligibility evaluation unless extenuating circumstances prevented a timely submission.
The regulations defined "extenuating circumstances" to include cases where the worker was not told by his physician that he would not be able to return to his job within the ninety-day period.
The board's ruling in this case that a new ninety-day period would begin to run when the extenuating circumstance terminated was as correct as it was predictable. The regulations are silent on the question of whether a new deadline will be imposed. In light of this silence, there was no reason to believe that the board's prior rulings would not continue to be effective. Indeed, if the regulations had explicitly stated that once extenuating circumstances ended, the worker had an unlimited time to file an application, they probably would have been invalid
For me, this would be the end of the discussion. But today's opinion holds that any retriggered ninety-day deadline should be established by regulation. Because it was not, the opinion holds that the board's ruling is invalid and workers therefore had an unlimited or indefinite time to apply after extenuating circumstances terminated.
Burke Did Not Raise Any Contention Regarding the Administrative Procedure Act
Burke did not make any argument before the board, the superior court, or this court relying on, citing, or even mentioning the APA. Instead, Burke argued that because the board in promulgating the regulation did not provide for a renewed ninety-day deadline, the board "did not want" such a deadline. In today's opinion the court states: "Burke asserts that the board cannot by adjudication `add requirements to the law that neither the legislature nor the executive branch in its rule-making power chose to add to the Act or regulations, respectively.'"
The Administrative Procedure Act Was Not Violated
My conclusion that the APA should not be considered in this case seems especially well justified given the opacity of the question of under what circumstances the APA may require rulemaking. In Alyeska Pipeline Service Co. v. State, Department of Environmental Conservation,
Today's opinion argues that the APA applies to the board's interpretation because the board's interpretation is new: "It works to modify the requirements employees must meet in order to qualify for an eligibility evaluation under former AS 23.30.041(c)" and "it changes the requirements for a reemployment eligibility evaluation request from those set out in the regulations."
All of the quoted factors mentioned in Alyeska Pipeline point to the conclusion that the board's decision in this case was permissibly made as an adjudication that did not require rulemaking under the APA. This case does not involve an "expansive or unforeseeable interpretation," nor is it a case in which an agency had altered "its previous interpretation of a statute."
Alaska Statute 23.30.041(c) is a statutory expression of Part A (relief from a statutory deadline) of the discovery rule. It is silent as to Part B (retriggering the deadline). Before and after the adoption of the regulations, the board interpreted the statute, in accordance with Part B of the discovery rule, to retrigger the ninety-day deadline once exigencies had passed. The regulations — which concerned relief but not retriggering — did nothing to call this interpretation into question. Burke did not contend that the APA was violated. The board's reaffirmation in this case of its longstanding interpretation of the statute did not, in any event, violate the APA because the APA does not apply to the foreseeable, common sense rulings of an agency.
For these reasons, I would affirm the board's ruling. On the other issues presented by this case, I agree with the court's opinion.
Burke thus argued that the statute excused his failure to seek an evaluation within the original ninety-day period under the circumstances of his case and nowhere contained any requirement that he act within ninety days of a retriggering event.
Houston NANA, replying to Burke's argument, entitled a section of its brief, "There is a Reasonable Basis for the Board's Adoption of the Discovery Rule," and mentioned the "discovery rule" eight times over the next six pages. Houston NANA in its brief relied on the retriggering obligation of the discovery rule to support its position.
Stark, supra, is a good example of a board ruling interpreting subsection .041(c) before the regulations were effective. In Stark, the notice of injury was given on September 24, 1996, but the employee did not request an evaluation until August 12, 1997. Reversing a contrary determination of the RBA, the board found that until June 3, 1997, the employee had no reason to believe he could not return to his usual work. Since the employee's request was made within ninety days of this date, it was held to be timely. The board noted, in accordance with its prior decisions, that "the 90-day period for requesting an eligibility evaluation begins to run when the employee knew or should have known that he might not be able to return to the work he was doing at the time of injury." Id. at *5.
Not long after the regulations in question were adopted, the RBA concluded, just as the RBA did in the present case, that in light of the new regulations "there is no new 90-day limit imposed after an employee is informed by a physician that he may be permanently precluded from returning to work at the time of the injury." Gillen, supra, at *2. The board reversed this legal conclusion, in keeping with its pre-regulation decisions that the "90-day time period under AS 23.30.041(c) begins to run when the employee knew, or should have known, the injury may permanently preclude him from returning to his occupation at the time of injury." Id. at *5.
Jerry, supra, is another post-regulation case. In Jerry the notice of injury seems to have been given shortly after the injury itself, which occurred on August 11, 2000. The employee requested an evaluation on December 27, 2002. The RBA held that this request was untimely because the ninety-day period began to run on March 30, 2001, when the employee received a release to return to work that specifically limited the employee's capacities. The board affirmed the RBA's decision, noting as in previous decisions, "that the 90-day period begins to toll when the employee knew or should have known that he may be precluded from returning to his occupation at time of injury." Id. at *5, 6.
Similarly, Burke's attorney acknowledged in his brief before the board that
Judge Bolger also noted, when this case was appealed to the superior court, that "the RBA's interpretation ignores the Board's longstanding interpretation of the statute." Judge Bolger concluded that "the Board has applied a consistent interpretation of the statute and regulation, which requires an employee to make an application within 90 days after the extenuating circumstances have resolved."
The legislative history of the ninety-day limit set by AS 23.30.041(c) indicates that it was the product of considerable deliberation. The initial bill set a sixty-day limit but advocates of workers testified that sixty days would be too early in many cases. See Senate Bill (S.B.) 322, § 6, 15th Leg., 2d Sess. (Jan. 11, 1988) (imposing sixty-day requirement); Meeting of the Joint Senate and House Labor and Commerce Committee, 15th Leg., 2d Sess. (Jan. 29, 1988) (testimony of Joe Kalamarides and Steve Montooth). A representative of vocational rehabilitation counselors testified that workers need to start the rehabilitation process as early as possible and advocated that referral for evaluation be mandatory at ninety days post injury. Meeting of the Joint Senate and House Labor and Commerce Committee, 15th Leg., 2d Sess. (Feb. 12, 1988) (testimony of Dennis Johnson, President, Alaska Chapter of National Association of Rehabilitation Professionals in the Private Sector). The limit was changed to ninety days in recognition of these concerns. The court's view in this case that "a delay of about three months" — that is ninety days plus about three more months — is "certainly not an unreasonable amount of time given the length of time that had passed" (and therefore the filing was timely) is inconsistent with the legislative judgment reflected by the ninety-day deadline and this history. See Op. at 868.