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Bohlmann v. Alaska Const. & Engineering, Inc.

Supreme Court of Alaska

April 17, 2009

Theodore A. BOHLMANN, Appellant,
v.
ALASKA CONSTRUCTION & ENGINEERING, INC., North American Specialty Insurance, Its Workers' Compensation Carrier, and Wilton Adjustment Service, Its Workers' Compensation Adjuster, Appellees.

Theodore A. Bohlmann, pro se, Colfax, Washington, Appellant.

Robin Jager Gabbert and Merrilee S. Harrell, Russell, Wagg Gabbert & Budzinski, Anchorage, for Appellees.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.

OPINION

EASTAUGH, Justice.

I. INTRODUCTION

To what extent must the Alaska Workers' Compensation Board inform or guide pro se claimants? Alaska Statute 23.30.110(c) requires denial of a workers' compensation

Page 317

claim if the claimant does not file a request for a hearing within two years after the employer files a controversion notice. Pro se claimant Theodore Bohlmann filed his request for hearing August 31, 2005, slightly more than two years after his employer filed a notice of controversion on August 6, 2003. The board then denied his claim. Because the board should have corrected the employer's erroneous assertion made at a July 2005 prehearing conference that the claim was already time barred, we reverse and remand so that the board may determine the merits of Bohlmann's compensation rate claim.

II. FACTS AND PROCEEDINGS

Theodore Bohlmann began working as an excavation operator for Alaska Construction & Engineering (AC & E) at an Eklutna rock quarry in late June 2001. On July 29, 2001, a falling boulder and several smaller rocks hit him when he got out of his excavator at the work site. Bohlmann was pinned under the rocks for about half an hour Before being taken to the hospital. He broke his left ankle, left leg, and some toes in his left foot, and he had a deep cut on his right knee that required surgery. AC & E initially paid him temporary total disability (TTD) benefits at a rate of $168 per week; it later paid him permanent partial impairment (PPI) benefits.

Bohlmann filed a pro se claim for adjustment of his compensation rate on February 11, 2002. He asserted, apparently based on advice he received from staff at the Division of Workers' Compensation,[1] that his rate should have been calculated using AS 23.30.220(a)(10) rather than AS 23.30.220(a)(6). AC & E filed an answer denying Bohlmann's claim, but did not file a notice of controversion. At two 2002 prehearing conferences, the prehearing officer told Bohlmann he would have to file and serve an affidavit of readiness for hearing within two years after the employer controverted his claim.

On July 10, 2003, Bohlmann filed another workers' compensation claim. It requested an adjustment in his compensation rate based on overtime he said had not been included when his compensation was calculated. On August 6, 2003, AC & E filed a controversion notice controverting the compensation rate adjustment claim and asserting that Bohlmann's compensation rate had been " correctly computed under AS 23.30.220(a)(6)." AC & E's notice did not specify the date of the claim or claims it controverted. From September to December 2003, Bohlmann filed four more claims, three of which claimed an unfair or frivolous controversion.

Over the next few years a board designee held several prehearing conferences on various issues and claims. An attorney represented Bohlmann for about eight months but did not file an affidavit of readiness for hearing. At a prehearing conference on July 20, 2005, Bohlmann, who was by then again pro se, asked to amend his June 8, 2005 TTD benefits claim to include a compensation rate adjustment claim. AC & E objected, contending that Bohlmann had previously filed compensation rate adjustment claims that were barred by AS 23.30.110(c). The record does not indicate that the board designee who conducted the July 20 prehearing conference informed Bohlmann either that the time bar in subsection .110(c) had not in fact run yet or that the deadline for submitting an affidavit of readiness for hearing was actually August 6, 2005, two years after AC & E had filed its notice of controversion. With the assistance of division staff, Bohlmann filed on August 31, 2005 an affidavit of readiness for hearing in which he requested a hearing on claims he filed on September 9, 2003; September 16, 2003; October 20, 2003; and December 10, 2003. AC & E filed an opposition.

The parties stipulated to a hearing on the applicability of AS 23.30.110(c) to Bohlmann's rate adjustment claims; the hearing took place in January 2006. AC & E presented testimony from the workers' compensation officer who handled most of the prehearing conferences in Bohlmann's case. She testified that as far as she remembered, the prehearing conference ...


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