2007-051. Mark C. Berean Appellant vs. Coleman Brothers Timber Cutting Inc. and Liberty Northwest Insurance Company Appellees.

• Case Date: August 02, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-051. Mark C. Berean Appellant vs. Coleman Brothers Timber Cutting Inc. and Liberty Northwest Insurance Company Appellees Alaska Workers' Compensation Appeals CommissionMark C. Berean, Appellant, vs. Coleman Brothers Timber Cutting, Inc. and Liberty Northwest Insurance Company, Appellees.Decision No. 051 August 2, 2007AWCAC Appeal No. 07-026 AWCB Decision No. 07-0087AWCB Case No. 200615265Final Decision and Order Appeal from Alaska Workers' Compensation Board Decision No. 07-0087 issued April 17, 2007, by the southcentral panel at Anchorage, Rosemary Foster, Designated Chair, and Patricia A. Vollendorf, Member. Appearances: Mark C. Berean, pro se, appellant. Jeffery D. Holloway, Holmes, Weddle and Barcott, for appellees Coleman Brothers Timber Cutting, Inc. and Liberty Northwest Insurance Company.Commissioners: Jim Robison,Stephen T. Hagedorn,and Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Jim Robison, Appeals Commissioner. This appeal concerns whether Mark C. Berean timely filed an appeal with the Alaska Workers' Compensation Appeals Commission after the Alaska Workers' Compensation Board dismissed his claim due to his refusal to comply with a discovery order issued by the board. The board issued its decision dismissing Berean's claim on April 17, 2007. Berean filed a notice of appeal on June 11, 2007. Factual background. On April 17, 2007, the board dismissed Berean's claim for benefits. The board found that Berean willfully refused to comply with orders of the board's designee and refused to participate in the investigation of his claim.(fn1) Berean's failures included refusing to attend depositions, to participate in an independent medical evaluation, and to sign releases.(fn2) Despite being provided many opportunities to participate in the investigation of his claim and in the proceedings of the board, and after being advised of the consequences of failing to participate, the board found that Berean's failures were egregious and that no lesser sanction than dismissal would adequately protect the employer's interest and deter other discovery violations.(fn3) The board's decision stated that it was a final decision.(fn4) The board informed Berean that his appeal must be filed with the commission within 30 days of the filing of its decision.(fn5) Thus, if Berean wanted to file a timely appeal, he was required to file the appeal by the close of business on Thursday, May 17, 2007. On June 11, 2007, Berean filed a notice of appeal with the commission. This notice of appeal was accompanied by a Motion/Request by Pro Se Litigant to accept his appeal as a late-filed appeal, also filed on June 11. Berean's motion asked the commission to allow him to file his appeal 25 days late because: "I Mark C. Berean was treated as garbage, intimidated [and] overwhelmed." On June 18, 2007, the employer filed a combined opposition to Berean's motion to accept his late-filed appeal and a cross-motion to dismiss the appeal as untimely. On June 26, 2007, the commission conducted a hearing to take evidence as to whether or not Berean's appeal should be dismissed. Berean represented himself at the hearing and the employer was represented by counsel. At the hearing, Berean admitted that he received help from the commission regarding the filing of his appeal. Berean also telephoned the commission several times before his appeal was due. The commission's deputy clerk urged Berean to come to the office to file his appeal on time and offered to assist him in filing the forms. Berean acknowledged that the forms to file an appeal were easy to understand and short, with the possible exception of the Financial Statement Affidavit. Berean also spoke to at least three lawyers experienced in workers' compensation law before he came to the commission. He said they told him to file an appeal within 30 days. Despite questioning from the commission members, Berean was unable or refused to articulate any reason which preventedhim from filing an appeal on time. He instead argued that his case was so important, that the employer's conduct so heinous and the injustice of the board's decision so great, the commission should allow the appeal to go forward. Although he provided testimony regarding his educational background and limited writing abilities, he also conceded that he fully understood that he needed to file his appeal within 30 days of the board's decision. He asserts that the commission should make an exception in his case because of the egregious conduct of the employer and of the deceitful treatment he received from the insurer in the past. Analysis. The issue presented for the commission is whether it should accept Berean's late-filed appeal. The Alaska Statutes allow a party 30 days to file an appeal of a board decision to the commission.(fn6) The appeal process is initiated by the party filing a signed notice of appeal, a statement of the grounds upon which the appeal is taken, and other material that the commission may require.(fn7) Berean did not file a notice of appeal to the commission until 55 days after the board issued its decision, 25 days late. He asks the commission to relax the filing deadline as applied to him. The legislature enacted the 30-day appeal deadline to ensure that there is an adequate time for persons to consider and file an appeal. The appeal deadline is balanced by the corresponding need of all parties for finality to board decisions. Finality of decisions is a weighty consideration in the workers' compensation system where the legislature has reflected its desire to create a quick and efficient...