PETER M. THORNTON,		)
				)
Employee,			)	DECISION AND ORDER
Respondent,			)	AWCB Case Nos.		328683
				)				101162
v.				)	AWCB Decision NO.	90-0009
				)
NORTH STAR STEVEDORING,		)	Filed with AWCB Fairbanks
				)	January 17, 1990
Employer,			)
				)
and				)
				)
MISSION INSURANCE,		)
				)
Insurer,			)
				)
v.				)
				)
ATCO STRUCTURES, INC.,		)
				)
Employer,			)
				)
and				)
				)
INDUSTRIAL INDEMNITY,		)
				)
Insurer,			)
Petitioners.			)
				)

We are deciding this petition to dismiss the employee's claim on the basis of the documentary record and the parties' memoranda of law. Attorney Michael Stepovich represented the respondent employee; attorney Randy Weddle represented petitioners North Star Stevedoring and Mission Insurance; and attorney Richard Waller represented petitioners Atco Structures and Industrial Indemnity. All evidence and pleadings were filed by January 12, 1990, and we closed the record when we next met, January 16, 1990.

Is the employee's claim barred by AS 23.30.110© for his failure to request a hearing for two years following the employer's controversion?

The employee injured his back on July 7, 1981 while working for ATCO and reinjured it on November 1, 1983 while working for North Star Stevedoring. The employee received compensation benefits for a period, but ATCO Structures controverted all benefits on June 27, 1983, as did North Star Stevedoring on December 29, 1983. The employee filed an Application for Adjustment of Claim and a Statement of Readiness to Proceed requesting a hearing on January 26, 1984. The employee withdrew this Statement of Readiness to Proceed on December 12, 1984 in reliance on a settlement offer.

The settlement did not come to fruition and the employee filed another Application for Adjustment of Claim and Statement of Readiness to Proceed on November 18, 1986. North Star Stevedoring controverted the claim once again on December 10, 1986. The employee filed still another Application for Adjustment of Claim and Statement of Readiness on January 9, 1987. The employers petitioned their contention that the employee's claim should be barred by AS 23.30.105(a), AS 23,30.110(c), and laches. We heard the petitions on the written record issued a decision an June 9, 1987, AWCB NO. 87-0127, finding that the claim was not barred by those provisions. That decision was appealed to the Third District Alaska State Superior Court on July 6, 1987. The employee withdrew his Statement of Readiness to proceed in a workers' compensation preheating on August 14, 1987. The Superior Court issued an opinion on April 21, 1988 affirming our decision. 3 AN 87-6512 CIV.

On September 25, 1989 North Star Stevedoring petitioned us once again to dismiss the claim under AS 23.30.110(c). In an accompanying memorandum it argued that the Superior Court decision indicated that the two-year time limit at AS 23.30.110© began to run when the employee withdrew an earlier Statement of Readiness to Proceed in reliance on a settlement offer. (Id. at 4) Because the employee had not requested a hearing within the two years following the withdrawal on August 14, 1987 the statute should bar the claim. Atco Structures joined in the petition on September 28, 1989.

On October 6, 1989 the employee filed an Affidavit of Readiness to Proceed, requesting a hearing on the merits of his claim. He filed a brief dated October 10, 1989 in reply to the petition to dismiss. In this brief he cited Fischback & Moore v. Lynn, 407 p.2d 174, 176 (Alaska 1965) and argued that we lost jurisdiction over the case and that the statute of limitation at AS 23.30.110© was tolled when our decision was appealed to the Superior Court, He argued that the two-year statute of limitation would begin to run anew following the Superior Court decision. He also points out that the 1986 withdrawal was during the pendancy of the Superior Court case, and that we would have no jurisdiction to terminate his right to a hearing during that period. In a memorandum dated October 18, 1989 North Star Stevedoring argued that even if the Superior Court case tolled the statute of limitation, the two-year period should include the time both before and after the court case because the statute does not provide for an "uninterrupted" period, and that the employee failed to request a hearing during those combined periods. It also argued that the employee's withdrawal was entirely his own action and did not depend on our powers of jurisdiction. Atco Structures filed a reply memorandum dated October 19, 1989, additionally arguing that the employee's claim should be barred because he failed to comply with discovery requests and failed to serve pleadings on Atco.

The employee filed a brief on December 20, 1989, arguing that there is no authority or legal basis to consider the statute of limitations to be running before the employee withdrew his Statement of Readiness to Proceed. He also cited a number of court decisions from other jurisdictions which held that a statute of limitations would not run while a case was on appeal to a higher body. North Star Stevedoring filed a reply memorandum on January 12, 1990 reiterating its earlier arguments.

I. Discovery

As a preliminary matter we will address Atco Structure's request to dismiss the claim for the employee's failure to comply with discovery. Our regulations at 8 AAC 45.054 govern discovery in our proceedings. This regulation permits us to use the wide range of sanctions found in the Alaska Rules of Civil Procedure for a failure to comply with discovery, but the regulation also provides for exclusion of the evidence as a specific sanction. That is the sanction we would normally employ and we decline to use such an extraordinary sanction as dismissing the employee's claim without a hearing in this case.

II. Service

Atco Structures also requests us to dismiss the claim for the employee's failure to properly serve certain pleadings. 8 AAC 45,060 governs service for our proceedings, but provides no sanctions for improper service or failure to serve. We note, however, that the issues and arguments in this case have been repeatedly restated and reargued and there would be no lack of notice to all parties even if the specific documents referred to by Atco Structures were excluded from the record. We will not dismiss this claim for improper service.

AS 23.30.110(c) provided at the time of the employee's injury, in 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."

The procedural history of this claim is a nightmarish tangle, but it is clear that the employee repeatedly requested a hearing (and actually came to a hearing before us) before any statute of limitations could bar his claim. The issues considered in that hearing have remained in litigation until the Superior Court gave its disposition on April 21, 1988.

We have consistently ruled that we will exercise no jurisdiction over issues appealed from our decisions to the Alaska State Courts. See, Brookins v. Totem Electric, AWCB No. 88-0028 (February 18, 1988). The statute of limitation and equitable remedy issues being considered by the Superior Court could have been dispositive of the entire claim. We conclude that we did not have jurisdiction over the claim during the pendancy of the appeal, and that our statute of limitation was tolled during that period.

Inasmuch as the parties were actively litigating the statute of limitations issues until our first decision and order and we did not have jurisdiction during the Superior Court appeal, we would not have permitted the employee to have a hearing on the merits of his claim before the court disposed of that appeal. We now have the rather bizarre spectacle of the employers raising issues that prevented the consideration of the merits of the claim for several years, and then attempting to argue that the hiatus arising in the litigation over those issues should be used to bar the consideration of the merits of the underlying claim.

The parties litigated aspects of this claim until the Superior Court Decision on April 21, 1988, and no hearing on the merits of the claim was possible until that decision. We conclude that AS 23.30.110(c) did not begin to run concerning the employee's claim on the merits until April 21, 1988.

Even if we should calculate the statute as automatically starting when we once again took jurisdiction at the time of the Superior Court decision, fewer than eighteen months passed before the employee requested a hearing in his affidavit. The claim would not be barred under AS 23.30.110(c). We will deny the petition to dismiss.

The petition to dismiss the employee's claim under AS 23.30.110(c) filed on September 25, 1989 is denied.

DATED at Fairbanks, Alaska, this 17th day of January, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William S.L. Walters
William S.L. Walters, Designated Chairman

/s/ DwRichards
David Richards., Member

/s/ Steve M. Thompson
Steve M. Thompson, Member

WSLW/ml

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

APPEAL PROCEDURES

A compensation order may he appealed through proceedings in the Superior Court brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

A compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the decision and Order in the matter of Peter M. Thornton, employee/respondent; v. North Star Stevedoring, employer; and Mission Insurance, insurer; v. Atco Structures, Inc., employer; and Industrial Indemnity, insurer/petitioners; Case Nos. 328683 and 1001162; dated and filed in the Alaska Workers' Compensation Board at Fairbanks, Alaska this 17th day of January, 1990.

Clerk

SNO