Tuesday, May 2, 2017

Alaska Addresses Challenges with Pro-Se Appeals

An interesting opinion of the Alaska Supreme Court in October 2016 addressed an intriguing workers' compensation case. Eder v. M-Rivers, Case S-15871 is worthwhile reading. It involved a worker injured in July 1975. That illustrates that workers' compensation cases can have long term effects. He was provided care and disability benefits for a period, but in 1977 the Alaska Workers’ Compensation Board denied further temporary total disability (TTD) "because it thought Eder was 'exaggerating his problems for secondary gain (additional compensation).'” The worker left Alaska and worked for a locksmith in California. 

In the 1980s, Eder was injured in a work-related accident in California and again received workers' compensation benefits. The physicians attributed some of his "disability to the initial Alaska injury." In 1986, "Eder filed a pro se written claim for permanent total disability (PTD) in Alaska." It appears no hearing was ever held. The employer/carrier's attorney said that the claim "disappeared. It just went away,” despite an attorney appearing for Eder shortly after it was filed.  Eder later testified that this attorney passed away, and thus the claim was not pursued. It is possible that this was a "claim" such as Florida had pre-1994, and not a jurisdiction invoking event like the pre-1994 Application for Hearing or the modern Petition for Benefits (PFB). Before the PFB process, Florida claims sometimes languished for decades. 

In 2012, Eder again sought permanent partial benefits in Alaska. The Board dismissed "on res judicata grounds," despite the recovering worker's argument that his time to appeal "should have been tolled because he was mentally incompetent throughout this time period."  The Board concluded that there was "ample evidence that he was at least competent enough to cooperate with attorneys to secure benefits."

Eder appealed, and "then asked for a series of extensions of time in which to file his opening brief." He said he was challenged by the volume of documents and testimony in the record. He struggled to obtain copies, and denied that he could travel to Alaska to review the materials at the the Commission. Eventually, Eder filed documents with the Commission, which the Court described in part as "indecipherable, but some of it appears to refer to Eder’s case." One notation did support Eder's desire for a copy of the records in his case. 

In December 2014, the Board granted Eder's third extension of time to file, and said if he failed to “file his opening brief and excerpt of record on or before Friday, January 16, 2015, his appeal may be dismissed for failure to prosecute.” It was apparently this "excerpt of the record" that was challenging him. Eder later filed a fourth motion for extension of time, and petition for review (by the Alaska Supreme Court), and a motion to stay the proceedings while the petition for review was pending. The Commission denied the extension of time, and the Court denied the petition for review.

The Commission then dismissed the appeal. It concluded that the Commission did not have to "provide [Eder] with the requested documents/evidence.” The Commission concluded it had no duty to provide records "at no charge." Without those records, Eder could not prepare the "excerpt," and therefore could not proceed with his appeal. And Eder appealed that to the Alaska Supreme Court, and the issues was limited to "whether the Commission’s dismissal decision was correct."

The Court concluded that the "appeal is about access to the appellate record for pro se litigants in workers’ compensation cases." It conceded that Eder's "pleadings are difficult to read," but that it was clear Eder "sought a complete copy of the Board record before he filed his brief." The Court concluded that accessing the record is critical to preparing an appeal in Alaska workers' compensation, because the Commission requires appellants to include "an excerpt of record" with their brief. Florida uses a similar process in some extraordinary proceedings, in which an "appendix" of evidence is attached to the party's filing; however, in most proceedings a PDF record of proceedings is instead prepared.

The Court noted that state regulations "permits the division to charge for copying," and permits it to "refuse to make the copies itself as long as it makes the record available for copying at a division office." But, the Court also noted that the state is free to waive copy costs, which the Commission had done in other cases. 

The Court also noted that the Court itself had "provided Eder with a scanned copy of the record." However, Eder objected to the sufficiency of that. Without explanation in support of why, he asserted that "he wants a hard copy of the record rather than an electronic one." The Court found "no need to provide him with one in light of the large number of pages in it that are duplicate records from his California case."

The Court reversed the Commission's dismissal of Eder's appeal. It concluded that despite lacking clarity on various points, Eder was clear in his requests for access to the record. It concluded that Eder was indigent and unable to either pay for copies or to travel to Alaska. And, the Court noted particularly that prior to dismissal the Commission "failed to make findings related to good cause," regarding dismissal. The Court noted that if there were doubts as to good cause, the Commission "could have held a hearing" or suggested alternatives to Eder. 

This is, of course, supportive of the practice of electronic digital records employed by the Florida OJCC. With documents in PDF format, they can be inexpensively (as compared to photocopies) reproduced on a CD, DVD, or even a flash drive at minimal cost. While the Alaska Court concluded that Eder was entitled to a copy of the records, it did not conclude that he was entitled to a hard-copy, paper version. 

The Florida OJCC periodically provides copies of documents to injured workers and employers. But, anyone can register for full access to their case in the electronic filing program, e-JCC. That provides complete and ongoing access to the documents filed at no cost. 

The critical points that this case reminds us are:
(1) when a Florida petition is filed, the assigned judge should see to it that the case moves forward. This requires attention and management. There is no excuse for cases languishing without attention for years. 
(2) injured workers are entitled to access the filings in their case. The Florida OJCC will provide that access through e-JCC electronic filing, or with documents on a CD or flashdrive. In exceptional circumstances, paper copies may also be provided.
(3) before a case is dismissed (an exceptional outcome) for failure to comply with rules, there should be an opportunity for the recovering worker to address any failure to comply with either the rules or prior rulings of the judge. 
(4) workers' compensation claims may require long periods to reach conclusion. Patience and good record-keeping may be critical. 

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