CHARLES GARRISON,		)
				)
Employee,			)	DECISION AND ORDER
Respondent,			)	AWCB Case No. 8627369
				)	AWCB Decision No. 90-0121
v.				)
				)	Filed with AWCB Juneau
ASPLUNDH TREE EXPERT CO.,	)	June 11, 1990
				)
Employer,			)
				)
and				)
				)
NATIONAL UNION FIRE INSURANCE	)
COMPANY				)
				)
Insurer,			)
Petitioners.			)
				)

Petitioners request that we dismiss Employee's claim as barred by AS 23.30.110(c) was heard at Anchorage, Alaska, on May 30, 1990. Employee is represented by attorney Jaime Hidalgo. Petitioners are represented by attorney Allan Olson. The hearing was held based on the written documents and evidence in our file; none of the parties appeared in person.

Is Employee's claim barred by AS 23.30.110(c)?

Employee completed a report of injury on November 26, 1986, alleging he had injured his arms on August 20, 1986, while driving a truck. Employer completed its portion of the report on November 28, 1986, and stated Employee did not miss work due to the injury. (Notice of Occupation injury or Illness). We did not receive this notice until Employee submitted it, along with other documents relating to his injury, on January 12, 1987.

On January 20, 1987, Employee wrote to us, asking about the status of his claim, and if he had to do anything else. Our staff responded that his claim was reported as a no-time loss, we had no medical reports showing he was disabled, and he should contact Employer's insurance adjuster to find out its intentions. (Dalrymple January 23, 1987 letter).

Employee wrote again to our staff; his letter was received on February 9, 1987. Our staff responded on February 11, 1987, stating that the adjuster had been contacted, that Employer doubted the claim's validity, and the adjuster was proceeding with an investigation. A form to file a claim was enclosed with the letter to Employee. (Dalrymple February 11, 1987, letter).

On February 9, 1987, the adjuster filed a notice denying all benefits. The reason given was "Employer doubts validity of claim. Further investigation is necessary." (Controversion Notice February 9, 1987). The reverse side of the Controversion Notice, which is the form we require be used for controverting a claim, provides information about the effect of the controversion as well as the employee's rights and obligations.

On May 27, 1987, we received Employee's claim. Employee's reason for filing the claim was "Crawford and Co. controverted my claim on 11-9-86 [sic] for further investigation. Given them all the information they asked for. Would like to know what they are doing." Accompanying his claim was a letter in which he again asked what the adjuster was doing "so I will know if I will get the service of a lawyer."

Our staff sent him a form, a Statement of Readiness for Hearing, to complete if he needed to request a hearing. Employee completed the form to request a hearing and submitted it to our office; we received it on June 11, 1987. Accompanying the form was a copy of a letter to the adjuster which was signed by Employee. The letter listed the adjuster's claim number and stated, "I am sending you a Transmittal Letter to let you know that I am sending you a Medical Summary Form 07-6103 and all the Medical Reports I have in my possession."

On July 31, 1987, we received Petitioners' second controversion notice which was dated July 29, 1987. It again stated that all benefits were denied. The reasons given were, "Claimant failed to report claim on timely basis. Questionable that present problems occurred during course and scope of employment. Employer doubts validity of Claim." The notice was given on our prescribed form which contains the following instructions in large bold type at the top of the form; "EMPLOYEE: READ IMPORTANT INFORMATION ABOUT YOUR RIGHTS ON BACK."

Petitioners' attorney's filed an entry of appearance on August 12, 1987. Our staff held a conference on August 12, 1987; Petitioners' attorney attended, and Employee participated by telephone. The conference notes state that Employee might get an attorney to represent him, but was going to see if his brother could help resolve the dispute. No hearing was set; instead the summary stated the claim would be followed-up in 30 days.

We have no evidence that anything happened on Employee's claim until we received a letter on February 27, 1989, from a law firm in Yakima, Washington, submitting another claim on Employee's behalf. Employees attorney did not request a hearing.

Our staff returned the claim form, asking that it be fully completed. (Hall February 28, 1989, letter). The completed form was received March 9, 1989. Our staff served the claim upon Petitioners on March 10, 1989. On March 21, 1989, our staff wrote to Employee's attorney stating "I am enclosing forms for your use in request a pre-hearing and regular hearing. . .. No pre-hearing or regular hearing will be scheduled until these forms are filed. . . . If you have any questions about our procedure, please let me know." (Shira March 21, 1989 letter).

On April 3, 1989, Petitioners filed an answer contending, among other defenses, that it was barred by AS 23.30.110.

No further action was taken by the Yakima law firm. Instead, on May 15, 1989, Employee's present attorney's filed an entry of appearance. On June 5, 1989, we received Employee's request for a pre-hearing conference. Apparently, a pre-hearing conference was scheduled for June 20, 1989, but we have no evidence that it occurred. On June 22, 1989, we received Employee's request for another pre-hearing conference. A pre-hearing conference was held July 20, 1989. No hearing date was set at that time; instead the parties were allowed time for discovery and to discuss settlement. It appears no further action occurred until we received Petitioners' request on April 9, 1990, that we dismiss Employee's claim as barred by AS 23.30.110(c).

First, Employee contends that, under AS 23.30.110(c), he timely requested a hearing on June 9, 1987, when he filed the statement of readiness after receiving the first controversion notice. Therefore, subsection 110(c) does not bar his claim. Second, he contends if another request for a hearing was required after the second controversion notice, we should excuse his failure to file the request. He was unrepresented by counsel at that time, and remained so until February 1989.

Petitioners contend that AS 23.30.110(c) is clear and requires dismissal of the claim. Petitioners contend that Employee did not timely ask for a hearing because there is no proof of service upon the employer or the adjuster of the June 1987 statement of readiness, and the adjuster did not receive it. Second, even if we excused the failure to serve the June 1987 statement of readiness, Employee never asked for a hearing after the second controversion notice was filed. His first hearing request is inapplicable. Therefore, under AS 23.30.110(c) his claim should be dismissed.

At the time of Employee's claim, AS 23.30.110(c) provided in part:

We have consistently denied employers' request for dismissal under AS 23.30.110(c) when a notice of controversion was filed in response to an injury report and before a claim was filed. We have repeatedly held that subsection 110(c) requires a claim to be controverted, and the notice of injury is not a claim. Routh v. Glacier State Telephone, AWCB Decision No. 89-0238 (September 7, 1989); Thornton v. North Star Stevedoring, AWCB Decision No. 87-0127 (June 9, 1987); aff'd 3 AN 87-6512CI (Alaska Super Ct., April 21, 1988); Hansen v. Burton Carver & Co., AWCB Decision No. 85-0242 (August 23, 1985). Based on these rulings, we conclude Petitioners' initial notice of controversion would not commence the running of subsection 110(c).¹

In this case, however, after Employee filed his claim and statement of readiness, Petitioners filed a second notice of controversion dated July 29, 1987. Accordingly, they have followed the directives of our repeated rulings and controverted Employee's claim, not just the notice of injury. Therefore, we must decide whether AS 23.30.110(c) bars Employee's claim because he failed to request a hearing after this second notice of controversion.

Recently in Adams v. Valdez Outfitters, AWCB Decision No. Unassigned (Claim No. 8101866) (May 23, 1990), we again noted that AS 23.30.110(c) is an example of what Professor Larson calls a "no progress" rule. Under such a rule a claim may be dismissed solely due to failure to prosecute it or request a hearing within a specified time period. See, generally, 2B A. Larson, The Law of Workmen's Compensation, Section 78.84, pp. 15-410 et seq. (1986). Although in Adams we were dealing with different factual circumstances, we find our statements equally applicable to the instant claim. "In our case the specific time period is two years after controversion and claim denial is both mandatory and effective without any proceedings. The statute flatly provides 'the claim is denied' rather than "shall be" or "may be dismissed by the board." Adams at 4 - 5.

Of course, this case is troubling because Employee had requested a hearing a few months before the second controversion was filed and, as an unrepresented injured worker, might not have realized the need to file another request for a hearing after the second controversion was filed. We find there are several reasons why these facts are less compelling than they might appear at first blush.

First, Employee's claim was controverted on a board prescribed form. The form clearly instructs the injured worker to read the back side of the form to learn about his or her rights. On the back side of the form it states in bold type: " If you disagree with the denial, you must file a timely written claim . . . . You must also request a timely hearing before the AWC Board (see time limits below) . . . . Later on the form it states:

Employee had been able to properly complete, file, and serve the first request for a hearing; there is no evidence that he was unable to do so a second time. His correspondence indicates that he possesses at least average intelligence, is able to read and write, and able to represent himself although he chose not to do so. He offered no reason for his failure to do anything on his claim for almost one and one-half years before he secured an attorney to represent him.

Second, six months before subsection 110(c) barred Employee's claim, he retained counsel. Although Justice Rabinowitz' dissent in Pan Alaskan Trucking, Inc. v. Crouch, 773 P.2d 947, 951 (Alaska 1989), expressed concern that Crouch's attorney had only seven months to ask for a hearing, this did not seem to trouble the majority when they denied Crouch's claim based on subsection 110(c). While his attorney filed a claim, he failed to request a hearing. Although Employee's present attorney appeared only about 10 weeks before the provisions of AS 23.30, 110(c) barred Employee's claim, he did not submit evidence that he was unable to request a hearing in the 10 weeks before subsection 110(c) barred the claim. Petitioners' answer had clearly made subsection 110(c) an issue, and it had given Employee time to request a hearing before the claim was actually barred by subsection 110(c).

Accordingly, we conclude Employee's claim is barred by AS 23.30.110(c). Therefore, we grant Petitioners' request and deny and dismiss Employee's claim.

Petitioners' request is granted; Employee's claim is denied and dismissed.

DATED at Juneau, Alaska this 11th day of June, 1990.

ALASKA WORKERS' COMPENSATION BOARD

/s/ Rebecca Ostrom
Rebecca Ostrom, Designated Chairman

/s/ Mary A. Pierce
Mary A Pierce, Member

/s/ David W. Richards
David W. Richards, Member

RJO:rjo

If compensation is payable under the term, employer, and s 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 injunction staying payment is obtained in Superior Court.

APPEAL PROCEDURES

A compensation order may be appealed through proceedings in Superior Court brought by a part 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 Charles Garrison, employee/respondent, v. Asplundh Tree Expert Company, employer, and National Union Fire insurance company, insurer/petitioners; Case No. 8627369; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this 11th day of June, 1990.

Clerk