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Justice v. RMH Aero Logging2/15/2002
lied?
In Vienna v. Scott Wetzel Servs., Inc., we considered whether and to what extent Alaska Pacific Assurance Co. v. Brown should be applied retroactively. Brown held that former AS 23.30.175(d) unconstitutionally reduced the compensation benefits of injured workers residing outside Alaska. We held in Vienna that the Brown decision applied retroactively to those workers whose claims remained open to adjudication, and to those who had preserved the issue for appeal. Similarly, in Metcalf v. Felec Servs., we held that the holding in that case would extend to workers' compensation cases "in the pipeline" as of the date of the court's decision. This included "workers whose claims remain open to adjudication and those who preserved the issue for appeal, assuming the time for appeal not expired."
We now hold that Gilmore is likewise retroactively applicable to workers whose claims remain open to adjudication, and to those who have preserved the issue for appeal. Indeed, as we noted above, RMH concedes that Gilmore should apply retroactively "to workers who raised the issue prior to Gilmore, had a claim open to adjudication at that time, or who had preserved the issue for appeal when the decision was issued."
3. Justice's claim for a compensation rate adjustment is open to adjudication.
RMH argues that Gilmore may not be retroactively applied to Justice's claim for a compensation rate adjustment because it is not "open to adjudication." RMH contends that because it did not controvert Justice's claim for workers' compensation benefits, and because Justice received the last benefits payment on July 10, 1995, AS 23.30.105(a)'s two-year statute of limitations expired on July 11, 1997. Because Justice did not seek a compensation rate adjustment until May 11, 1998, RMH asserts that his claim is not "open to adjudication."
Alaska Statute 23.30.105(a) permits claims within two years after the date of the last payment of workers' compensation benefits paid without an award. But AS 23.30.105(b) provides that " ailure to file a claim within the period prescribed in (a) of this section is not a bar to compensation unless objection to the failure is made at the first hearing of the claim in which all parties in interest are given reasonable notice and opportunity to be heard." Justice contends that because RMH did not object at the November 9, 1998 hearing - the first (and only) hearing before the board - his claim is not barred by AS 23.30.105(a)'s two-year statute of limitations, and is therefore open to adjudication.
We ordered supplemental briefing in this case addressing the following issues: (1) "When and to what extent RMH was placed on notice that Justice was seeking to recover additional compensation for the period of disability between 1993 and 1995"; and (2) "What opportunity RMH had to argue that any attempt to make a change in the compensation rate applied to the period between 1993-95 was untimely."
Justice argued in his opening supplemental brief that RMH was placed on notice that Justice was seeking to recover additional compensation for the period of disability between 1993 and 1995 on March 1, 1998, when he sent a letter to the board asking "for an adjustment of weekly compensation rate retroactive to 7-10-93 to 8-9-94 (56 weeks) 9-1-97 to 3-1-9 (26 weeks) and beyond." (Emphasis added.) In that letter, Justice requested back compensation of $11,180.70 and a new weekly compensation rate of $290.35. Justice enclosed his calculations explaining how he arrived at $11,180.70. Those calculations reveal that Justice was seeking an additional $7,635.60 in compensation for the period between July 10, 1993 and August 9,
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