JUANITA ZIMMERMAN,		)
				)
Employee,			)	INTERLOCUTORY
Respondent,			)	DECISION AND ORDER
				)	AWCB Case No. 8614196
v.				)	AWCB Decision No. 90-0002
				)
DYNAELECTRON SERVAIR, INC.,	)	Filed with AWCB Anchorage
				)	January 11, 1990
Employer,			)
				)
and				)
				)
NATIONAL UNION FIRE INSURANCE,	)
				)
Insurer,			)
Petitioners.			)
				)

This petition was submitted for decision on the written record. Employee (Respondent) represented herself, and attorney Marilyn Kamm represented Defendants (Petitioners). We closed the record for this matter on December 12, 1989, the date we next met after time expired for briefing.

Did Employee fail to request a hearing within two years after Defendants controverted her claim for workers' compensation benefits? If so, should her claim be dismissed under AS 23,30.110(c)?

Employee was injured on July 14, 1986, and she received either temporary total disability (TTD) or temporary partial disability (TPD) benefits from July 15, 1986 to May 20, 1987.

On April 2, 1987 (before the last payment of her benefits) Employee's attorney at that time, Gil Johnson, filed an Application for Adjustment of Claim asserting, among other requests, that Defendants owed Employee "additional benefits." In their answer filed on April 23, 1987, Defendants asserted Employee was not entitled to any additional benefits. On May 26, 1987 Defendants filed a controversion notice denying all categories of compensation except medical benefits.

No prehearings or regular board hearings were held on the April 2, 1987 application. On November 17, 1988 attorney Johnson filed a notice of withdrawal as attorney.

On January 11, 1989 the State Workers' Compensation Division (Division) received a letter from Employee in which she stated in relevant part:

(Employee January 5, 1989 letter).

On January 19, 1989 Bruce Dalrymple from the Division sent Employee a letter explaining that if she felt she was entitled to further benefits, she had a right to file a claim and, if necessary, to request a hearing before the workers' compensation board. Dalrymple told her to contact him and he would send her the necessary forms.

On February 6, 1989 Employee sent Insurer's adjuster American International Adjustment Company) (AIAC) a letter stating it was her understanding from her contact with the Division that she was "supposed to contact you in order to come to some settlement of my claim against (Employer). She went on to state in part:

On May 8, 1989 Employee again wrote the adjuster in which she referred to her February 6, 1989 "counterproposal for settlement" of her claim. She further noted that, as requested by the adjuster, she was examined by a Dr. E. Cahill in March 1989. (We have not been provided with a copy of this report). Employee then stated she had not received any word on the matter since then, and she asserted she was unable to work without further training, and she had to borrow money for food. This letter was apparently returned to Employee, and she resent the letter on May 15, 1989.

By letter dated May 24, 1989 the adjuster informed Employee that it had tried three times to reach her by telephone to take her recorded interview but the number Employee gave was no longer in service. The adjuster acknowledged receiving the May 15, 1989 letter and Employee's settlement discussion, noted Employee had previously been offered $1,000 to settle her claim, and informed Employee that the settlement offer was still valid for another 15 days or until June 8, 1987. The adjuster also pointed out that it takes about 30 days to get a signed settlement approved by the Board. Finally, the adjuster requested that Employee call collect to reschedule her recorded interview.

By letter dated June 5, 1989 Employee responded by clarifying that her telephone had not been disconnected until approximately one week ago (late May 1989). Employee added that she felt she was being bullied into accepting the adjuster's offer, and she contended that she had been unfairly controverted. She went on to state that the adjuster had "continuously refused to communicate" with her, and had "refused to acknowledge, accept or refute the Dr's diagnoses . . . ."

On July 5, 1989 Employee filed a second Application for Adjustment of Claim. In their answer filed July 26, 1989 Defendants asserted Employee's claim was barred by AS 23.30.110(c), and that in any event, Employee had not incurred any loss of wage earning capacity. On August 28, 1989 Defendants filed a Petition requesting that we dismiss Employee's claim under subsection 110(c).

Employee, still representing herself, asserts in her brief she was "deliberately misled" by the adjuster to file a claim after the "deadline." She adds:

(Employee October 23, 1989 brief at 2).

Defendants respond that Employee's case is analagous to Pan Alaska Trucking, Inc. et al v. Crouch, 773 P.2d 947 (Alaska 1989). In Crouch, the Alaska Supreme Court held that the employee's claim should have been denied under subsection 110(c).

Attached to Defendants' brief was an affidavit of claims representative Claire Hiratsuka. In her affidavit, Hiratsuka acknowledged being the adjuster on Employee's claim, and she stated Employee's claim, that Employee was deliberately misled, is "totally unfounded." Hiratsuka also stated she never made any statement to Employee or took any action with the intent of misleading or deceiving Employee. She added that she had in fact "never even discussed the requirements of (subsection 110(c)) of the Act with her. I continued to offer her the same sum that I had previously offered her to settle her claim . . . because I was unaware at that time that her claim was barred by (subsection 110(c))." Hiratsuka December 7, 1989 affidavit).

AS 23.30.110(c), in effect at the time of Employee's injury, states in pertinent part: "If a claim is controverted by the employer and the employee does not request a hearing for a period of two years following the date of controversion, the claim is denied."

Under a strict reading of subsection 110(c), Employee's claim would be denied and dismissed because she did not request a hearing until at least June 1989 which is more than two years after her claim was controverted on May 26, 1987. However, we find that waiver and estoppel may apply to issues involving the pertinent portion of subsection 110(c).

Unlike the statutes in several states, our statute does not provide relief to employees who claim they should be excused from a statutory time bar because of some form of action, conduct, misrepresentation or deception by the employer or insurer. See 2B A. Larson, The Law of Workmen's Compensation, Section 78.45, 15-302-15-303 (1989). Nonetheless, we believe that equitable relief in the form of waiver and estoppel should be available in the absence of statutory relief. See id., 15-323.

The following discussion in Professor Larson's treatise deals with notice and claim periods, but we find it is applicable by analogy to our subsection 110(c):

(Id.).

Further, Professor Larson adds:

(Id.).

In this case, Defendants may have waived their right to assert subsection 110© as a bar to Employee's claim. It is possible Employee may have been lulled into inaction on her claim. Her letters indicate Employer had scheduled a recorded telephone interview and a medical appointment for her. She claims her phone worked and she was available for interview. Moreover, she contends she went to her medical appointment as requested by Employer, and then she could not get a response from the adjuster on the results of the medical examination which, of course, could affect the outcome of her pending claim.

All of this occurred during the last several months of the two-year period under subsection 110(F) which expired on May 26, 1989. This is the period during which defendants may have waived their right to assert subsection 110(c).

Employee may have felt that a hearing request was unnecessary because of the adjuster's conduct in scheduling a phone interview and a medical appointment for her during this period.

This conduct by the adjuster began over five months before the deadline expired, and it continued until after the time expired.

However, before we decide whether Defendants waived their right to assert subsection 110(o), we want to hear testimony from Employee and from Hiratsuka. We find that their testimony will shed more light on their communications after Employee's attorney withdrew from the case. This testimony will assist us in deciding the outcome of the waiver issue.

Accordingly, we order the parties to contact pre-hearing officer Paul Grossi to schedule this matter for hearing at the earliest mutually acceptable time so we may take testimony from Employee and Hiratsuka. Of course, the parties will have the opportunity to question each other on this matter, too, and present other relevant evidence on this issue.

Employee has the burden of proof on the waiver issue; that is, she must present evidence that Defendants intentionally relinquished their right to assert the statutory bar contained in subsection 110(c). See Palmer v. Anderson, 603 P.2d 495, 499 (Alaska 1979); and Merle Miller v. Alaska International Construction, AWCB No. 87-0284 (November 12, 1987). We find that this evidence centers around the events that occurred, and the parties' conduct, during the period from January 1989 to June 1989.

We note that our file contains no medical reports since May 1987. The parties shall submit any reports which have been completed since that time.

The parties shall proceed in accordance with this decision. A hearing shall be set on the issue of Defendants' waiver of their right to assert AS 23.30.110© in this case.

Dated at Anchorage, Alaska, this 11th day of January 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Mark R Torgerson
Mark R. Torgerson, Designated Chairman

/s/ D.F. Smith
Darrell F. Smith, Member

MRT/mrt/jpc

If compensation is payable under terms of this decision, it is due on the date of issue and penalty of 20 percent will accrue if not paid within 14 days of the due date unless an interlocutory order staying payment is obtained in Superior Court.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Juanita Zimmerman, employee/applicant; v. Dynaelectron Servair, employer; and National Union Fire Insurance , insurer/defendants; Case No. 8614196; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 11th day of January 1990

Clerk

SNO