2007-065. Mario Velderrain Appellant vs. State of Alaska Division of Workers' Compensation Appellee.

• Case Date: November 29, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-065. Mario Velderrain Appellant vs. State of Alaska Division of Workers' Compensation Appellee Alaska Workers' Compensation Appeals Commission Mario Velderrain, Appellant, vs. State of Alaska, Division of Workers' Compensation, Appellee.Decision No. 065 November 29, 2007AWCAC Appeal No. 07-032 AWCB Decision No. 07-0196 AWCB Case No. 700001708Memorandum Decision and Order Order on Motion to Accept Late-Filed Appeal for Alaska Workers' Compensation Board Decision No. 07-0196, issued July 11, 2006, by the northern panel at Fairbanks, William Walters, Designated Chair, Jeffrey P. Pruss, Member for Industry. Appearances: Zane D. Wilson, Cook, Schuman and Groseclose, limited appearance for appellant Mario Velderrain. Talis J. Colberg, Attorney General, and Larry A. McKinstry, Assistant Attorney General, for the appellee, State of Alaska, Division of Workers' Compensation.Commissioners: Jim Robison, Philip Ulmer, and Kristin Knudsen.This decision has been edited to conform to standards for publication(fn1) By: Kristin Knudsen Chair. The State of Alaska, Division of Workers' Compensation (hereafter DWC) petitioned the board for penalties against Mario Velderrain, owner and operator of Hot Tamale, a restaurant in Fairbanks. After a hearing on June 21, 2007, the board assessed a penalty against Velderrain for failure to insure his employees and for failure to comply with a prior stop work order in a decision issued by the board on July 11, 2007.(fn2) This appeal was filed on August 27, 2007, 47 days after the decision.(fn3) Velderrain filed a "Motion to Late File Appeal" with his notice of appeal. We heard this motion to accept the late-filed appeal on October 25, 2007. The appellant, Mario Velderrain, appeared and testified by telephone with his attorney, Zane Wilson.(fn4) The commission also took testimony by Mark Lutz, a workers' compensation fraud investigator. The commission, seeing that there were gaps in the evidence, and that Velderrain referred to letters not available to the commission, asked the parties to submit affidavits and documents, including the board's order approving the payment plan.(fn5) The commission requested a brief memorandum on the finality of the board's order, if the board had not issued an order approving the payment plan. The record closed on October 31, 2007. 1. Arguments to the commission. Velderrain asks the commission to accept his late-filed appeal because he attempted in good faith to obtain an extension of time to file his appeal at the direction of his second attorney, Nelson Traverso. He claims he visited the workers' compensation office on an unspecified Friday, to speak with Ms. Stuller.(fn6) He was told by an unidentified person to wait until Monday to speak to Ms. Stuller since she was not in at the time of his visit. When he returned on the following Monday, it was too late to file an appeal. It took him further time to find a third attorney, Mr. Wilson, who assisted him in filing this late appeal. He argues that there is good cause to extend the deadline because of the impact of the fine on his business, his lack of English skills, and his good faith effort to file an appeal. Unlike Berean, who was informed but simply did not do what he was supposed to do, Velderrain claims he made good faith efforts to find someone who would help him to file an appeal, and, given his limited English, he further claims he needed assistance. Finally the potential for injustice was high because the fine would put him out of business. Velderrain also argues that the board's decision was not final because a payment schedule was not approved. He suggests that, because he appeals the fine as disproportionately severe, the payment plan is a required part of the appealed board decision because it affects the severity of the fine and its impact on his business. DWC argues that Velderrain understood the deadline but did not file on time, and there is no evidence that he attempted (albeit mistakenly) to file his appeal at the division office. Velderrain waited until the last possible day to file his appeal before coming to the state office building to seek an extension. He waited two weeks after the board's order to find his first attorney, when he was facing a fine of about $255,000. DWC argues there is an equal potential for injustice to injured employees who benefit from the Workers' Compensation Benefits Guaranty Fund(fn7) if Velderrain's late appeal is allowed. DWC argues the appeal should be dismissed as untimely in line with the decision in Berean v. Coleman Bros. Timber Cutting, Inc.(fn8) DWC explained it did not file a timely objection to the motion to accept the late-filed appeal because it believed our docket notice was an order accepting the appeal. DWC argues that the decision is final, as it adjudicates all of the rights of the parties, and that...