2009-110. Patricia and Mark Lawson d/b/a JB Services Appellants vs. State of Alaska Workers' Compensation Division Appellee.

• Case Date: May 29, 2009
• Court: Alaska

Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-110. Patricia and Mark Lawson d/b/a JB Services Appellants vs. State of Alaska Workers' Compensation Division Appellee Alaska Workers' Compensation Appeals Commission Patricia and Mark Lawson d/b/a JB Services, Appellants, vs. State of Alaska, Workers' Compensation Division, Appellee.Decision No. 110 May 29, 2009AWCAC Appeal No. 09-009 AWCB Decision No. 09-0015 AWCB Case No. 700002197Final Decision and Order Motion to accept late-filed appeal from Alaska Workers' Compensation Board Decision No. 09-0015, issued at Anchorage, Alaska on January 22, 2009, by southcentral panel members, Janel Wright, Chair, Patricia A. Vollendorf, Member for Labor, Robert C. Weel, Member for Industry. Appearances: Mark Lawson, pro se, on behalf of appellants Patricia and Mark Lawson d/b/a/ JB Services. Wayne Anthony Ross, Attorney General, and Erin Pohland, Assistant Attorney General, for appellee State of Alaska, Workers' Compensation Division. Commission proceedings: Appeal filed March 10, 2009, with Motion to Accept Late Filed Appeal. Hearing on Motion to Accept Late Filed Appeal held April 2, 2009. Notice of Commission Record and Reopening of Hearing to Receive Affidavit and Record Evidence issued May 5, 2009. Affidavit of Michael P. Monagle and Affidavit of Mark Lutz filed May 12, 2009. Affidavit of Mark Lawson filed May 13, 2009.Commissioners: Philip Ulmer, Jim Robison, Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. This appeal arises from a decision by the board assessing a penalty against an employer for failure to carry workers' compensation insurance. The State of Alaska, Workers' Compensation Division (State) filed a petition asking the board to (1) find that Mark and Patricia Lawson d/b/a JB Services was an employer, (2) find it was uninsured for workers' compensation liability, (3) assess a penalty under AS 23.30.080(f), and (4) issue a stop order under AS 23.30.080(d). The board held a hearing on May 7, 2008, on the State's petition, but left the record open to receive additional evidence until January 6, 2009. On January 22, 2009, the board issued a decision finding JB Services, Inc., and its predecessor sole proprietorship JB Services, was an employer(fn1) that failed to insure for workers' compensation liability and assessed a civil penalty of $91,000 against them.(fn2) The decision was mailed by certified mail to the Lawsons on January 22, 2009. The Lawsons filed an appeal of the board's decision in the commission on March 10, 2009, with a motion to accept the late-filed appeal. The State opposes the motion. The appellants' motion to accept a late-filed appeal was heard by the commission on April 2, 2009. The appellants presented testimony by JB Services' principals, Mark Lawson and Patricia Lawson, in support of the motion. The appellants argue that they did not receive the decision until February 17, 2009. They argue that they had so much to deal with in their personal lives, including a flood on January 16, 2009, Patricia Lawson's aunt's illness and their son's arrest, that they could not file an appeal within 30 days of the board's decision. They argue that they filed an appeal within 30 days of the date they received the decision and that this is sufficient compliance to allow the commission to excuse the delay. The State argues that the delay receiving the decision should not excuse appellants' delay filing an appeal because appellants' conduct caused the delay in receipt. The State argues that the appellants' appeal period had not run when they received the decision and they have not shown good cause why the appeal could not have been filed on time. This appeal requires the commission to address the impact of the Supreme Court's recent decisions in Kim v. Alyeska Seafoods, Inc., 197 P.3d 193 (Alaska 2008), Shea v. State, Dep't of Admin., 204 P.3d 1023, (Alaska 2009), and Bohlmann v. Alaska Constr. and Engineering, Inc., 205 P.3d 316, (Alaska 2009) on AS 23.30.127(a).(fn3) The commission concludes that if appellants were required to demonstrate substantial compliance with the statute, as required by Kim, they failed to do so. If appellants were required to demonstrate actual compliance in respect to the substance essential to every reasonable objective of the statute,(fn4) they failed to do so. If appellants were required to demonstrate good cause for their delay, they failed to do so. The commission therefore denies the motion and dismisses the appeal. 1. Evidence presented to the commission. Mark Lawson presented the testimony of his wife, Patricia Lawson, and himself in support of his motion to accept the late-filed appeal. Patricia Lawson testified she usually did not pick up the mail from the couple's community mail box every day. She collected it once a week when no business activities were going on and put it in a pile. She testified that she did not pay attention to the mail at all in January and February. She did not check the mail in the pile. She testified she never saw the decision or a "yellow slip" (the notice of attempt to deliver) from the local post office. She testified she pays the bills once a month. She testified that she is unfamiliar with legal proceedings and she does not know about any civil litigation involving her business. She testified she did not see the faxed decision and she did not know what went on after Mark received it because she was not at home. She testified she still has not read the decision. Patricia Lawson testified that their back yard was flooded, a shed destroyed, and a tree fell over as a result of flooding on January 16 or 17, 2009, following a storm. She testified that the street was flooded, including the area around the community mail box, for a day or two. She testified her son was arrested for driving on a suspended license on January 30, 2009. She testified she was busy with taking care of her sick aunt while her husband was busy with "drainage issues." Mark Lawson testified that he was completely occupied with organizing his neighbors and "calling Sen. Dyson" and other officials regarding the flooding, so he did not pay attention to his mail. He testified that it had been so long since the board hearing, he was not looking for a decision from the board. He also testified that his son was arrested in January, and that this event also occupied his energies calling officials. He testified that these activities were a "good full time job" until the prosecutor dismissed the charges. He conceded that the charges against his son were dropped on February 5, 2009, but he testified he is still trying to get his truck back. He also testified that he has a pending lawsuit regarding a piece of equipment and that he recently gave a deposition in the lawsuit.(fn5) Mark Lawson testified he found the postal notice in the pile of mail at home but that when he took the postal notice to the post office, the letter had already been returned to the board. He testified he found the postal notice two days before he took it to the post office. He said he actually received the decision by fax after calling the State's investigator, Mark Lutz, evidently because the postal notice had the board's address on it. He testified he received the faxed decision on Tuesday, February 17, 2009. Mark Lawson testified that after receiving the decision, he called the director of the Workers' Compensation Division, Ms. Heikes, who told him to file his appeal as soon as possible. He testified he also called Mr. Lutz. He testified he called the commission's clerk (Ms. Beard) who advised him he would need to file a request to accept a late-filed appeal with his appeal. He testified he called "fifty lawyers" to see if any would represent him. He testified he could not have filed the appeal in less than a week. Mark Lawson testified it took him about a week and he wrote ten drafts of his appeal. He also testified he spent most of two or three days preparing the appeal document, staying up late to do so. The State presented a copy of a certified mail receipt showing the decision was mailed on January 22, 2009, to the appellants at their home address in "Eagle River, AK 99577."(fn6) The State also submitted a copy of a "Track and Confirm" screen showing that the receipted mail was "delivered at 9:08 AM on February 18, 2009 in ANCHORAGE AK 99510."(fn7) The appellee also relies on the clerk's certification on the board's decision showing the date of filing as January 22, 2009.(fn8) After reviewing the recording of testimony offered by Mark Lawson, the commission determined that there were points on which his testimony appeared to vary from the commission's record and staff recollection of the date Mr. Lawson first contacted the commission. Accordingly, the parties were given notice of the content of the commission record and staff recollection that Mr. Lawson contacted the commission on February 27, 2009, and Mr. Lawson's testimony that he contacted the appeals commission as early as February 17, 2009.(fn9) The record was reopened until May 12, 2009, and the parties were invited to submit affidavits or records in response to the commission staff recollection and electronic telephone record that Mr. Lawson first contacted the appeals commission on February 27, 2009, or to respond, clarify, or add to Mr. Lawson's testimony.(fn10) Mr. Lawson filed an affidavit on May 13...