JERRY E. GUNTER, 
Employee, 
Applicant
v. 
KATHY-O-ESTATES INC,
Employer,
and 
FIREMANS FUND INS CO,
Insurer,
Defendants.

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FINAL
DECISION AND ORDER
AWCB Case No. 198805751
AWCB Decision No. 99- 
Filed with AWCB Anchorage, Alaska 
on December , 1999

We heard the employee’s claim for reimbursement at Anchorage, Alaska on December 2, 1999. The employee represented himself. Attorney Allan Tesche represented the employer. We closed the record at the conclusion of the hearing.

Whether the employer must reimburse the employee for transportation costs to attend a prehearing conference, associated interest, expenses for court-ordered alcohol abuse counseling, rent owed due from a former roommate, thefts and damage by another roommate, alcohol and drug testing, repairs to his truck, one-half the value of a boat, and a stolen gold watch; and whether we should assess a fine against the employer’s attorney.

The employee suffered a severe closed head injury in a traffic accident while delivering a trailer for the employer on April 4, 1988. As a consequence, his treating physicians declared him permanently and totally disabled. As a result of a dispute over the employee’s compensation rate, the parties entered into a partial Compromise and Release ("C&R"), determining the employee’s gross weekly earnings at the time of his injury. We approved that C&R on August 9, 1990.

Additional disputes arose as to disability status, compensation rate, social security offset, and guardianship expenses. The employee retained attorney Joseph Kalamarides who negotiated a settlement, which was reduced to a second written partial C&R. Among other things, the C&R provided the employee would receive compensation at the weekly rate $175.00 for the first ten years, increased to $200.00 thereafter. The C&R also provided $40.00 per month for guardianship services. Because of concerns regarding the employee's competence, the Superior Court appointed attorney Ernest Schereth special conservator to review the settlement.

On October 22, 1992, the court approved the settlement and terminated Mr. Schereth's special conservatorship. The court also appointed Community Advocacy Project of Alaska, Inc. (CAPA) as partial conservator for an indefinite time period. On November 18, 1992, we approved the second C&R.

The employee filed a Workers’ Compensation Claim on July 8, 1998, requesting we overturn his C&R agreements, indicating he wanted additional compensation. We considered the employee’s request to overturn the C&R in Gunter v. Cathy O’ Estates AWCB Decision Nos. 98-0320 (December 22, 1998) and Gunter v. Cathy O’ Estates AWCB Decision No. 99-0098 (April 29, 1999). In those decisions, we noted the history of this case, the court’s action in appointing a conservator, the recommendations of the conservator, and the medical and psychological records. We especially relied on the opinion of Paul L. Craig, Ph.D., the employee’s former treating psychologist. In a letter dated December 1, 1998, Dr. Craig indicated:

No. Jerry does not have the necessary neurocognitive skills in order to adequately or appropriately represent himself before the Board. He would not be able to understand the underlying legal and financial principles to an extent that would allow him to make a judicious, informed, and competent presentation or decision about such matters. . . .

At a minimum, Jerry needs a competent Workers' Compensation attorney representing him before the Board. Given Jerry's long-standing history of psychosocial maladaptation and poor judgment in the community, it is questionable whether Jerry could interface competently with legal representation. Hence, having an advocate in the form of a guardian protecting his interests within the Workers' Compensation system may be helpful. I am rarely involved in guardianship appointment under the Workers' Compensation statutes. In the context of general guardianship in the State of Alaska, without family support that has been provided over the years, I suspect that Jerry would have had a guardian appointed for other purposes as well. Basically, the patient's family and Jill Friedman, R.N. [who has been providing medical case management services], have served as informal guardians during recent years.

In our April 29, 1999 decision, we determined the employee was not competent, as a result of his head injury, to represent himself. Under AS 23.30.140, we declined to allow the employee to proceed in his attempt to overturn his C&Rs; and we requested the conservator, CAPA, to again seek the court-appointment of an attorney to act as a guardian or conservator for the employee. We here incorporate by reference the summary of the evidence as detailed in Gunter v. Cathy O’ Estates AWCB Decision Nos. 98-0320 (December 22, 1998) and 99-0098 (April 29, 1999).

The employee filed Workers’ Compensation Claims on May 7, 1999 and October 22, 1999, and amended his July 8, 1998 claim in a prehearing conference on November 15, 1999. In these claims he demanded the employer pay for criminal court-ordered alcohol treatment and anger management programs, a $500.00 court fine, $500.00 in unpaid rent from one roommate, $10,000.00 for theft by another roommate, $4,000.00 for a stolen gold watch, $6,000.00 for one-half of a river boat, and $35.00 for an alcohol / drug test, and transportation to a prehearing conference, with interest. In its November 10, 1999 Answer, and in several prehearing conferences, the employer denied these costs are covered by the Alaska Workers’ Compensation Act.

These additional issues were set for hearing on October 22, 1999. At that hearing the employer and CAPA represented that a guardianship hearing was set for the employee on November 1, 1999 in the Alaska Superior Court. The employee vehemently objected to postponing his hearing. Based on the representations of the employer and CAPA, we continued the case until after the a guardianship hearing. Gunter v. Cathy O’ Estates AWCB Decision No. 99-0214 (October 22, 1999)

When we reconvened to hear the case, Leah Ward from CAPA testified the court did not appoint a guardian, but directed her organization to find an attorney to represent the employee in his workers’ compensation case. No written order had been issued, as yet, so the exact scope of the court’s findings and directions are not known. The employee strongly wished to proceed with his reimbursement requests. Neither Ms. Ward nor the employer objected to proceeding to hear those issues. Because the reimbursement requests were very limited issues, which could not affect the general compensability of the employee’s claim, nor his long-term compensation benefits, we exercised our discretion to allow him to proceed.

At the hearing on December 2, 1999, the employee argued he is entitled to $200.00 in reimbursement from the employer for having to fly back from a moose hunt in Fairbanks to attend a prehearing conference on or about July 8, 1999. He also requested we fine the employer’s attorney $1,000.00.

He claimed the employer should reimburse him for court-ordered alcohol treatment and anger management programs and screening, and a fine. He testified he was innocent of the assault charges, but his "brain pled guilty." He contended one of his roommates cut himself with a knife in order to get the employee into trouble. He claimed reimbursement by the employer for unpaid rent from one roommate, and alleged property damage and theft by another. He testified he filed criminal complaints against both of the roommates. He requested repairs for his truck. He requested $4,000.00 reimbursement for his gold-and-diamond encrusted watch, stolen while he was boating. He also wants $6,000.00 for the half-interest in his boat, which he gave to a mechanic friend in exchange for boat maintenance. He argues all of his problems are caused by his head injury, and that the employer should pay for all the expenses.

The employer argued prehearing conferences are procedural accommodations to bring the disputed issues to a hearing, and are not normally reimbursable, absent a hearing and an order from us. The employer pointed out it had filed on October 1, 1999, court documents relating to the misdemeanor charges against the employee. It also noted that Dr. Craig testified in his deposition, pages 24 & 26, that the employee’s alcohol abuse is not related to his head injury. The employer argued that none of the employee’s claims for reimbursement are benefits provided by the Alaska Workers’ Compensation Act.

I. REIMBURSEMENT FOR COURT-ORDERED TREATMENT,

The employee argues he is entitled to reimbursement from the employer for transportation costs to attend a prehearing conference, associated interest, expenses for court-ordered alcohol abuse counseling, rent owed due from a former roommate, thefts and damage by another roommate, alcohol and drug testing, repairs to his truck, one-half the value of a boat, and a stolen gold watch. He also argues we should assess a fine against the employer’s attorney.

The authority and jurisdiction of the Alaska Workers’ Compensation 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).

Under the Alaska Workers’ Compensation Act, we have jurisdiction over the employee’s entitlement to only certain, specified benefits, such as PTD benefits under AS23.30.185 and medical benefits related to his injury under AS 23.30.095(a). We find the employees claims for expenses for court-ordered alcohol abuse counseling, rent owed due from a former roommate, thefts and damage by another roommate, alcohol and drug testing, repairs to his truck, one-half the value of a boat, and a stolen gold watch are either criminal matters or claims for general civil damages, not claims under specific provisions of the Alaska Workers’ Compensation Act.

Criminal sanctions and penalties are imposed by the state or federal governments, and may not be prosecuted through private action as crimes. See Doyle v. Peabody, 781 P.2d 957 (Alaska 1989). We have no direct jurisdiction over criminal violations. See, e.g., State v. O'Neill Investigations, Inc., 609 P.2d 520, 525 (Alaska 1980); Dayhoff v. Temsco Helicopters, Inc., 848 P.2d 1367, 1374 (Alaska 1993). We have consistently held we have no jurisdiction over even those sections of the Alaska Workers" Compensation Act containing criminal sanctions, AS 23.30.250 and AS 23.30.255. See Christie v. Rainbow King Lodge, AWCB Decision No. 94-0114 (May 12, 1994); Beaudry v. State, AWCB Decision No. 94-0290 (November 17, 1994).

As discussed above, criminal sanctions are clearly to be enforced in federal or state courts. We can find no unenumerated remedy or equitable power that can be exercised by us. Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066, 1067 (Alaska 1991).

Although the record is not entirely clear, we might regard the employee’s claim for the reimbursement of rent owed from a former roommate, theft and damage by another roommate, repairs to his truck, one-half the value of the boat, and a stolen gold watch as claims for general civil damages. AS 23.30.055 provides that the employer and insurer are immune from general civil liability if they furnish workers’ compensation benefits. The record reflects the employer has provided workers’ compensation benefits. We find the reimbursements claimed by the employee do not fit into any of the categories provided by the Alaska Workers’ Compensation Act, and under AS 23.30.055 we must conclude the employer is not liable for those reimbursements.

Additionally, an administrative agency can generally adjudicate a dispute only if it has been given explicit authority by statute. Far North Sanitation, Inc., 825 P.2d at 870. Because these claims do not fall within the categories of benefits provided by the Act, we conclude we lack jurisdiction to award the reimbursement requested by the employee.

In this case, we can find no statutory or case law supporting the proposition that we have authority to interfere with criminal sanctions, or to impose general civil liability on the employer. Based on our review of the record and the law, we find we have no authority to award the employee's claim for reimbursement. Consequently, we must deny and dismiss these claims. McCubbins v. Wilder Construction, AWCB Decision No. 99- 0195 (September 23, 1999); Williams v. Knik Sweeping Co., AWCB Decision No. 98- 0298 (December 1, 1998).

II. LEGAL COSTS FOR TRANSPORTATION

AS 23.30.145 provides, in part:

(b) If an employer fails to file timely notice of controversy or fails to pay compensation or medical and related benefits within 15 days after it becomes due or otherwise resists the payment of compensation or medical and related benefits and if the claimant has employed an attorney in the successful prosecution of the claim, the board shall make an award to reimburse the claimant for the costs in the proceedings, including a reasonable attorney fee.

8 AAC 45.180 provides, in part:

(f) The board will award an applicant the necessary and reasonable costs relating to the preparation and presentation of the issues upon which the applicant prevailed at the hearing on the claim. The applicant must file a statement listing each cost claimed, and must file an affidavit . . . .

We find the employer resisted paying the reimbursements claimed by the employee. Consequently, we can award fees and costs under subsection 145(b) if the employee prevails on his claims. Alaska Interstate v. Houston, 586 P.2d 618, 620 (Alaska 1978). However, we awarded none of the employee’s requested reimbursements, but dismissed his claims. Accordingly, we can award no legal costs under AS 23.30.145(b) or 8 AAC 45.180(f). Accordingly, we must deny and dismiss the employee’s claim for transportation costs related to a prehearing conference. Casselman v. City of Seward, AWCB Decision No. 99-0171 (August 13, 1999).

Because we have awarded no transportation costs, we can award no interest on those costs. 8 AAC 45.140. In his claim for the transportation costs, the employee also requested that we assess a fine on the employer’s attorney. We can find no authority in statute, case law, or regulations to assess such a fine. We conclude we cannot fine the attorney. Far North Sanitation, Inc., 825 P.2d at 870.

III. GUARDIAN OR CONSERVATOR FOR THE SET ASIDE OF THE C&R

AS 23.30.012 is a short statutory provision, which provides for C&R settlement agreements. However, the setting aside of an approved C&R is a much more complicated process. In Olsen Logging Co. v. Lawson, 856 P.2d 1155 (Alaska 1993), the Alaska Supreme Court addressed the question of whether we may set aside an approved C&R. In that case a panel had set aside an approved C&R, based on its findings that the employee lacked judgment and foresight due to a brain injury. It also found the employee was disadvantaged by financial distress, was represented by an out-of-state attorney who might not be expert in Alaska workers' compensation law, and the amount of the lump-sum settlement was insignificant compared to the potential liability. Finally, the panel concluded that the parties to the claim had also made a mutual mistake of fact.

The court noted that under AS 23.30.012, approved settlement agreements "have the same legal effect as awards, except that they are more difficult to set aside." (Emphasis added). Id. at 1158. The court held that the provision of AS 23.30.012, exempting approved C&R agreements from modification for changed conditions or mistakes of fact under AS 23.30.130, was an expression of legislative intent that approved settlement agreements may not be modified on those grounds. The Court held that the panel had erred in setting aside the approved C&R. The Court specifically referred to the panel's reliance on the grounds of unilateral and mutual mistake.

Based on the Olsen decision, we find we do not have authority to set aside an agreed settlement under AS 23.30.130 for a mistake of fact. Id., at 1159. However, we have found authority to set aside an agreed settlement for fraud or duress in past cases. Smith v. Commonwealth Electric Co., AWCB Decision No. 94-0141 at 8 (June 16, 1994) and Travers v. American Building Maintenance Co., AWCB Decision No. 94-0140 at 7-8 (June 16, 1994). Klemme v. Eagle Hardware & Garden, AWCB Decision No. 96-471 (December 16, 1996). Therefore, we will consider only the claims made by the employee that his signature on the C&R was obtained under duress or fraud by the employer.

We have determined "duress" in the context of a C&R to be hardship intentionally created by overreaching or improper interference by the employer to coerce the employee to sign. Blanas v. The Brower Co., AWCB Decision No. 97-0252 (December 9, 1997). We have determined "fraud" in the context of a C&R to be intentional misrepresentation, which induces the employee to sign the C&R in reliance on that misrepresentation. Id. We have also determined the "clear and convincing" standard of proof is required to overturn a C&R for duress or fraud. Id.; Witt v. Watkins, 579 P.2d, at 1068-70. As noted above, the C&R cannot be set aside for the employee's misunderstanding of the terms or the consequences of the agreement. Olsen, 856 P.2d, at 1159.

In light of the discussion above, we find that the employee’s petition to set aside his C&Rs involves very complex legal issues. Considering the history of dispute over his original compensation rate, we also find that setting aside his C&Rs could have a profound, and possibly very negative, impact on his entitlement to benefits. Considering the employee’s medical and psychological records, we reaffirm the conclusion in our April 29, 1999 decision and order. We again find the employee is not competent, as a result of his head injury, to represent himself. Based on our review of the medical records and past proceedings, we find Employee needs guardianship services to investigate the merits of his request to set aside his C&R, and to counsel him concerning the advisability of pursuing it. Under AS 23.30.140, we decline to allow the employee to proceed in his attempt to overturn his C&R, unless he is represented by a court-appointed guardian or other representative with the responsibility to investigate and advise him.

In accord with the order of the Superior Court, we request the partial conservator, CAPA, to again seek an attorney to act as a guardian or conservator for purposes of the employee’s attempt to set aside his C&Rs. The C&R provides payment of fees and costs associated with guardianship services may not exceed $40 per month. We find the services of CAPA in conducting its investigation falls within the ambit of guardianship services. We conclude, under the terms of the C&R, CAPA should be reimbursed at the rate of $40 per month during the term of its service.

These sections give us considerable latitude, and responsibility, in making investigations and in conducting hearings. Cook v. Alaska Workmen's Comp. Bd., 476 P.2d 29 (Alaska 1970).

AS 23.30.140 provides:

Based on our review of the history of this case, and the employee’s medical and psychological records, we have determined the employee is not able to represent himself in the legally complex attempt to set aside his C&Rs. Based on the orders of the Superior Court, on the opinion of psychologist Paul Craig, on our review of the employee’s voluminous and confused written pleadings, and on our observations and discussion with the employee during the December 2, 1999 hearing, we find the employee does not fully understand the nature and meaning of the law governing workers’ compensation benefits. We find the employee is not competent, as a result of his head injury, to represent himself in pursuing any claim or petition under the Alaska Workers’ Compensation Act. We find the interest of the employee can be protected in adversarial proceedings before us, only if he is represented.

Under AS 23.30.140, we decline to allow the employee to proceed on any claims or petitions in a hearing before the Alaska Workers’ Compensation Board, unless he is represented by a court-appointed guardian or by another competent representative. We direct the staff of the Workers’ Compensation Division to schedule no hearings or prehearing conferences on the employee’s claims or petitions unless he is represented by a court-appointed guardian or other representative. We will retain jurisdiction over all aspects of the employee’s claims.

1. The employee’s claims for reimbursement for transportation costs to attend a prehearing conference, associated interest, expenses for court-ordered alcohol abuse counseling, rent owed due from a former roommate, thefts and damage by another roommate, alcohol and drug testing, repairs to his truck, one-half the value of a boat, a stolen gold watch, and a fine against the employer’s attorney, are all denied and dismissed.

2. Under AS 23.30.140, we decline to allow the employee to proceed on his petition to set aside his C&Rs, unless he is represented by a court-appointed guardian or other competent representative who is responsible to investigate the merits of his request, and to counsel him concerning the advisability of pursuing it. We direct the staff of the Workers’ Compensation Division to schedule no hearings concerning the petition to set aside the C&R, unless he is represented by a court-appointed guardian or other representative with similar responsibility.

3. Under AS 23.30.140, we decline to allow the employee to proceed on any claim or petition in a hearing before the Alaska Workers’ Compensation Board, unless he is represented by a court-appointed guardian or other competent representative. We direct the staff of the Workers’ Compensation Division to schedule no hearings or prehearing conferences on the employee’s claims or petitions unless he is represented by a competent representative.

4. CAPA, in its capacity as court appointed partial conservator, shall attempt to secure an attorney to represent the employee, in accord with the order of the Superior Court.

The employer shall reimbursed CAPA at the rate of $40 per month during the term of its service, in accord with the C&R of October 22, 1992.

5. We retain jurisdiction over all aspects of the employee’s claims.

Dated at Anchorage, Alaska this day of December, 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Walters
William Walters,
Designated Chairman

/s/ Andrew J. Pierkarski
Andrew J. Pierkarski, Member

/s/ Mark D. Stemp
Mark D. Stemp, Member

If compensation is payable under terms of this decision, it is due on the date of issue. A penalty of 25 percent will accrue if not paid within 14 days of the due date, unless an interlocutory order staying payment is obtained in Superior Court.

If compensation is awarded, but not paid within 30 days of this decision, the person to whom the compensation is payable may, within one year after the default of payment, request from the board a supplementary order declaring the amount of the default.

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be 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 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 Final Decision and Order in the matter of JERRY E. GUNTER employee / applicant v. KATHY-O-ESTATES INC, employer; FIREMANS FUND INS CO, insurer / defendants; Case No. 198805751; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, this day of December, 1999.

Brady D. Jackson III, Clerk

SNO