2006-023. Theodore A. Bohlmann Appellant vs. Alaska Construction and Engineering Inc. North American Specialty Ins. Co. and Wilton Adjustment Service Appellees.

Case DateDecember 08, 2006
CourtAlaska
Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-023. Theodore A. Bohlmann Appellant vs. Alaska Construction and Engineering Inc. North American Specialty Ins. Co. and Wilton Adjustment Service Appellees Alaska Workers' Compensation Appeals CommissionTheodore A. Bohlmann, Appellant, vs. Alaska Construction and Engineering, Inc., North American Specialty Ins. Co., and Wilton Adjustment Service, Appellees.Decision No. 023 December 8, 2006AWCAC Appeal No. 06-008 AWCB Decision No. 06-0042 AWCB Case No. 200114921Final Decision and Order Appeal from Alaska Workers' Compensation Board Decision No. 06-0042, issued February 23, 2006, by the southcentral panel at Anchorage, Krista Schwarting, Chair; Patricia A. Vollendorf, Member for Labor. Appearances: Theodore A. Bohlmann, self-represented, appellant; Robin Gabbert, Russell, Tesche, Wagg, Cooper and Gabbert, for appellees Alaska Construction and Engineering, Inc., North American Specialty Ins. Co., (formerly Wasatch Crest Mutual Ins. Co.) and Wilton Adjustment Service.Commissioners: John Giuchici, Philip Ulmer,Kristin Knudsen.By: Kristin Knudsen, Chair. The issue raised in this appeal is whether pro se (self-representation) status is sufficient to excuse a late request for a hearing and thus avoid dismissal of a claim under AS 23.30.110(c). We hold that pro se status is not sufficient to excuse late filing when the claimant was adequately informed of the consequences of failure to file a request for hearing within two years of the date a claim is controverted. We find substantial evidence in the record as a whole supports the board's findings that Bohlmann failed to file a request for hearing on his claims for adjustment of his compensation rate. We affirm the board's decision dismissing Bohlmann's claims for a compensation rate adjustment as denied under AS 23.30.110(c). Factual background and board proceedings.(fn1) Theodore Bohlmann was a retired(fn2) operating engineer(fn3) living in the STATE of Washington.(fn4) In 2001, he came to Alaska,(fn5) and Alaska Construction and Engineering (ACandE) hired him to work at the rock crusher at the Eklutna materials site (quarry).(fn6) He was injured July 29, 2001 when he got out of his loader to relieve himself and was struck by a falling boulder.(fn7) Bohlmann returned to Washington.(fn8) He was paid temporary total disability compensation based on a rate of $168 weekly(fn9) and permanent partial impairment compensation of $23,010.(fn10) Bohlmann had not been employed for 13 weeks when he was injured.(fn11) February 11, 2002, he filed a claim for a compensation rate adjustment.(fn12) He claimed his compensation rate was too low because he should be paid wages at the time of injury, based on Gilmore(fn13) and former AS 23.30.220(a)(4)(B).(fn14) ACandE filed answers to his claims denying applicability of Gilmore and entitlement to an adjustment under the February 11, 2002 claim,(fn15) and similarly denying entitlement to an adjustment under the July 10, 2003 claim.(fn16) ACandE also formally controverted the claim for a rate adjustment after the second claim was filed.(fn17) When Bohlmann sought to amend his claim in a pre-hearing conference on July 20, 2005 to include a compensation rate increase, ACandE's counsel objected on the grounds that the claims were time-barred under AS 23.30.110(c).(fn18) Bohlmann filed an affidavit of readiness for hearing on August 31, 2005, that did not list the February 2002 and July 10, 2003 claims for a wage rate adjustment.(fn19) At a pre-hearing conference on September 16, 2005, Bohlmann and employer's attorney agreed to a hearing on whether Bohlmann's compensation rate adjustment claims of July 10, 2003 and February 11, 2002 were time-barred under AS 23.30.110(c).(fn20) At the hearing, ACandE argued that Bohlmann was actively involved in his workers' compensation case, as he had filed eight claims, six requests for production, a number of protective order requests and he was repeatedly informed of the time-bar in AS 23.30.110(c).(fn21) ACandE argued that the two years from the date of controversion of the claim for a compensation rate adjustment expired on August 6, 2005; Bohlmann did not file a request for hearing until August 31, 2005.(fn22) Even then, the request for hearing did not list the two claims that concerned his claim for an adjustment of his compensation rate.(fn23) There was no reason to permit equitable relief, and the claims were denied by operation of law.(fn24) ACandE presented testimony by Joireen Cohen, a workers' compensation officer, that she provided Bohlmann with a copy of the (board) regulations and the form for an affidavit of readiness to proceed.(fn25) She testified that she recalled telling him that she would not decide the merits of his claim and that he would have to request a hearing by filing an affidavit of readiness to proceed.(fn26) She also recalled that Mr. Bohlmann on another occasion said he would be filing an affidavit of readiness to proceed.(fn27) Bohlmann presented a written hearing brief, in which he argued that the board had a duty to advise him when and how to file his request for hearing and failed to do so.(fn28) He argued that if the board staff correctly assisted him, he would not have missed the date. He also argued that he did not include the compensation rate adjustment claims on the request for hearing form because he thought the controversion of those claims had been "lifted."(fn29) He argued the same points in the hearing,(fn30) but added that he believed his attorney was not competent.(fn31) The board found that Bohlmann filed claims raising the compensation rate issue on February 5, 2002 and July 10, 2003, and that ACandE controverted the second claim on a board-prescribed form on August 6, 2003.(fn32) The board found that Bohlmann had until August 6, 2005 to request a hearing under AS 23.30.110(c).(fn33) The board found Bohlmann did not file a request for hearing until August 31, 2005.(fn34) The board explicitly found that Bohlmann was "consistently and correctly informed by the Board of the consequences if he filed [sic] to timely file an ARH."(fn35) The board concluded that Bohlmann's claims for compensation rate adjustment were barred.(fn36) Arguments presented to the commission. Bohlmann argues that the employer has not been prejudiced by his delay in filing a late request for hearing and the board has equitable powers it should have exercised to allow his case to go forward. He offers the following reasons why the board should have granted equitable relief: (1) the workers' compensation staff did not "try to the highest standards to help me pursue my claims" and is therefore responsible for the delay;(fn37) (2) he is a self-represented litigant who should not be held to the same standards as attorney-represented litigants;(fn38) (3) he was told he had to file a request for hearing to...

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