TIM JANNOTT, 
Employee, 
Petitioner
v. 
ALASKA COURT SYSTEM,
(Self-insured) Employer,
Respondent.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

INTERLOCUTORY
DECISION AND ORDER
AWCB Case No. 199922119
AWCB Decision No. 00-0030 
Filed in Anchorage, Alaska 
February 22, 2000.

We heard the employee’s petition relating to procedure on his mental injury claim in Anchorage, Alaska on February 16, 2000. The employee represented himself, and Assistant Attorney General Kristen Knudsen represented the employer. We heard the case with a two-member-quorum panel under AS 23.30.005(f). We closed the record at the conclusion of the hearing.

Are we required to first adjudicate the issue of whether the employee suffered extraordinary and unusual work stress before considering other aspects of his mental injury claim?

The employee completed a Report of Occupational Injury or Illness on November 9, 1999, and filed a Workers’ Compensation Claim on December 22, 1999, asserting he suffered a mental injury, a "Major Depressive Disorder" from a "hostile work environment," on or about October 26, 1999, in the course of his work for the employer as a Magistrate in Dutch Harbor, Alaska. He claimed temporary total disability (TTD) benefits, temporary partial disability (TPD) benefits, permanent total disability (PTD) benefits, permanent partial impairment (PPI) benefits, reemployment benefits, medical benefits, and attorney fees and costs, if applicable. The employer filed a Controversion Notice, denying benefits, on November 24, 1999; and filed an Answer denying the compensability of the employee’s claim on January 22, 2000.

In a prehearing conference on January 24, 2000, the employee asserted that if his condition did not meet the statutory definition of a workers’ compensation injury, he had the right to sue his employer in a common law action. The employer disagreed. The parties agreed to a hearing on February 16, 2000, on the employee’s petition to hear these elements separately from all other issues in his claim.

At the hearing, and in his brief, the employee argued we have no jurisdiction over mental stress work injuries under AS 23.30.395(17) until we have determined the work stress was extraordinary or unusual, that is, until we have found a compensable work injury. The employee contended we must, as a matter of law, decide this jurisdictional issue before addressing any other aspect of his claim. He argued that addressing other issues first could leave him bound by res judicata if we later dismiss his claim for failing to meet the definition of injury at AS 23.30.395(17). He contended this could leave him without legal remedy, which would be contrary to the intent of the Alaska Workers’ Compensation Act. He argued the elimination of the presumption of compensability from mental injuries under AS 23.30.120 and the restrictive definition of mental injury at AS 23.30.395(17) violate the quid pro quo of the remedial purposes of the workers’ compensation scheme. He also argued an initial decision on the jurisdictional issue of whether he was injured by extraordinary or unusual mental stress, could result in the dismissal of the claim as not within our jurisdiction, serving judicial economy at the same time it freed the employee to pursue a claim in court. The employee requests we issue a final decision and order on this issue, which he can appeal, if necessary.

At the hearing, and in its brief, the employer argued we have personal jurisdiction over the employee, and subject matter jurisdiction over his claim. It contended the employee was attempting to get us to rule he had failed to state a claim on which relief could be granted, analogous to a Alaska Civil Rule 12(b)(6) motion in court; or attempting to get us to make a summary judgment. It argues neither of those procedures is applicable to workers’ compensation claims. It argues we have adjudication authority and responsibility, and we should not issue advisory opinions. It argues the employee made a claim, which is complete on its face, giving us jurisdiction under AS 23.30.110(a) to decide the claim. It argues that to protect judicial economy, the issues of the employee’s claim should not be bifurcated.

I. JURISDICTION OVER THE EMPLOYEE’S CLAIM

AS 23.30.110 provides, in part:

The employee argues we are required, as a matter of law, to first adjudicate the issue of whether he suffered extraordinary and unusual work stress before considering other aspects of his mental injury claim. He appears to contend that, if we proceed in that manner, we must either find his claim compensable (at least regarding that element of his claim) or else we must dismiss his claim for lack of jurisdiction. He argues he will have a right to proceed for common law recovery against the employer in the Alaska Courts if we dismiss of his claim for failing to meet the statutory definition of AS 23.30.395(17).

The authority and jurisdiction of the Board derives from the State of Alaska, specifically from the Alaska Workers’ Compensation Act at AS 23.30.005, et seq., and the Alaska Administrative Procedure Act AS 44.62.540. Generally, an administrative agency can only adjudicate a dispute if it has been given explicit adjudicatory authority by statute. Far North Sanitation, Inc. v. Alaska Public Utilities Commission, 825 P.2d 867, 870 (Alaska 1992); and McDaniel v. Cory, 631 P.2d 82, 88 (Alaska 1981). The Alaska Supreme Court has recognized our equitable powers, but only as necessarily incident to the exercise of our statutory adjudicative responsibilities. Blanas v. The Brower Co., 938 P.2d 1056, 1062 (Alaska 1997); Schmidt v. Beeson Plumbing & Heating, 869 P.2d 1170, 1175 (Alaska 1994); and Land & Marine Rental Co. v. Rawls, 686 P.2d 1187, 1191 (Alaska 1984). See, also, McCubbins v. Wilder Construction Co., AWCB Decision No. 99-0195 (September 23, 1999). No unenumerated remedy or equitable power needs to be exercised by us in this proceding. Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066, 1067 (Alaska 1991).

As discussed above, any possible common law recovery available to the employee would clearly be a general civil law matter, and not within the ambit of our statutes. Any potential right to common law recovery would need to be pursued as a private action through the general civil suit jurisdiction of the Alaska State courts. The Alaska courts have jurisdiction over common law and statutory claims, completely independent of our procedures and decisions. See, e.g., VECO v. Rosebrock, 970 P.2d 906 (Alaska 1999).

In this case, the employee argues we must consider our jurisdiction, and craft our decisions and procedure in specific ways, in order to safeguard his potential right to sue. The employee presented no statutory or case law supporting his proposition that our actions or procedure affect his common law rights in the Alaska courts, and we note case law supporting the opposite proposition. Id. We find the employee filed a Workers’ Compensation Claim on December 22, 1999. Based on the sparse, but plain, language of the statute at AS 23.30.110(a), we conclude we have jurisdiction to hear and decide the employee’s claim. We will proceed to consider the employee’s claim in accord with the normal procedure from our statute, regulations, and governing case law.

AS 23.30.135(a) provides, in part:

AS 23.30.395(17) defines "injury" in pertinent part:

Aside from the theoretical legal underpinnings of his argument, the employee specifically requests us to consider first, and in isolation, the question of whether his work stress was unusual and extraordinary. AS 23.30.135 gives us very broad discretion in determining the procedure of our adjudications, specifically to best ascertain the rights of the parties. We will consider his request in light of the guideline from AS 23.30.135(a).

The statutory presumption of compensability for physical injury claims does not apply to a claim of mental injury caused by work-related stress. AS 23.20.120(c). In Williams v. State of Alaska, 939 P.2d 1065, 1071-72 (Alaska 1997), our Supreme Court held:

Because the statutory presumption of compensability does not apply to the employee's mental injury claim, he must prove his claim by a preponderance of the evidence. "Where one has the burden of proving asserted facts by a preponderance of the evidence, he must induce a belief in the minds of the [triers of fact] that the asserted facts are probably true. Saxton v. Harris, 395 P.2d 71, 72 (Alaska 1964). Claims for a mental injury must be based on actual events, not Employee's perception of the events. Arnold v. Tyson Seafoods Group, AWCB Decision No. 97-0253 (December 11, 1997).

For mental injuries arising from work-related stress, the Alaska Supreme Court requires that we must find each element of the test has been met independently before we can find the claim compensable. Williams, 939 P.2d at 1071-72. See Pool v. City of Wrangell, AWCB Decision No. 99-0191 (September 16, 1999).

Based on our review of the full written record, and the argument of the parties, we find many of the same witnesses and documents will be needed for the evaluation of each of the elements of a compensable mental injury under AS 23.30.395(17). Whether or not we eventually need to bifurcate certain issues in this case, we find we can best ascertain the rights of these parties by hearing and deciding all the elements of the test for a compensable mental injury under AS 23.30.395(17) in a single hearing. Under AS 23.30135, we deny the employee’s petition to hear separately the issue of whether the employee suffered extraordinary and unusual stress in his work as a magistrate for the employer.

1. We have jurisdiction under AS 23.30.110(a) to hear all aspects of the employee’s mental stress claim.

2. Under AS 23.30135, we deny the employee’s petition to hear the issue of whether the employee suffered extraordinary and unusual stress in his work as a magistrate for the employer, separately from all other issues in his claim. All elements of AS 23.30.395(17) will be heard in a single proceeding.

Dated at Anchorage, Alaska this 22nd day of February, 20000.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Walters
William Walters, Designated Chairman

/s/ John A. Abshire
John A. Abshire, Member

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

I hereby certify that the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of TIM JANNOTT employee / petitioner; v. ALASKA COURT SYSTEM, STATE OF ALASKA, self-insured employer / respondent; Case No. 199922119; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 22nd day of February, 2000.

Debra C. Randall, Clerk

SNO