Comp board has duty to help pro se litigants discern filing deadlines

In Alaska, the Division of Workers' Compensation and its staff owe a duty to unrepresented claimants to advise them of claims procedures and pursuing their compensation rights under the law.

Case name: Bohlmann v. Alaska Construction & Engineering, Inc., et al., No. 6362 (Alaska 04/17/09).

Ruling: The Alaska Supreme Court reversed and remanded a finding that the pro se employee's claim was time-barred. It found that the Division of Workers' Compensation had a duty to assist the employee in discerning the correct filing deadlines.

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What it means: In Alaska, the Division of Workers' Compensation and its staff owe a duty to unrepresented claimants to advise them of claims procedures and pursuing their compensation rights under the law.

Summary: An excavation operator for a construction company was severely injured when he was pinned under rocks from a falling boulder. The operator, who represented himself, requested an adjustment of his compensation rate for overtime allegedly based on advice from the workers' compensation division staff. The operator alleged the overtime had not been included when the compensation rate was initially calculated. The company disagreed, stating the compensation rate had been correctly computed. At a pretrial conference, the company made an erroneous assertion that the time for the operator to file his affidavit of readiness had already passed, and his claim was now time-barred. The Alaska Supreme Court held that the prehearing officer and the workers' compensation division staff should have at least given the pro se operator a specific deadline date for filing his affidavit or instructed him how to adequately pursue his compensation rights during litigation. The court found the staff had the opportunity and a duty to correct the erroneous statement made by the company. It also should have helped him determine the actual deadline "in more than general terms," as the operator did not have an attorney but was willing to pursue the rate adjustment claim.

The court found that, at a minimum, the division staff should have informed the operator how to preserve his claim or specifically how to evaluate the accuracy of the company's representation that the claim was time-barred. It reasoned that correcting the company's misstatement or telling the worker the actual date by which he needed to file his affidavit in order to preserve his claim would not have been advocacy for one party or the other.

The court reversed the decision that the operator's affidavit was time-barred, adding a presumption that the operator would have filed a timely affidavit had the staff satisfied its duty to him.

June 18, 2009

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