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               THE SUPREME COURT OF THE STATE OF ALASKA

BRENDA J. PRUITT,                              )
                                               )        Supreme Court No. S-14687
                      Appellant,               )
                                               )        Alaska Workers’ Compensation
      v.                                       )        Appeals Commission No. 10-032
                                               )
PROVIDENCE EXTENDED CARE                       )        OPINION
and SEDGWICK CMS, INC.,                        )
                                               )        No. 6766 – March 29, 2013
                      Appellees.               )
                                               )


              Appeal from the Alaska Workers’ Compensation Appeals
              Commission, Laurence Keyes, Commission Chair.

              Appearances: Brenda J. Pruitt, pro se, Tulsa, Oklahoma,
              Appellant. Colby J. Smith and Aaron M. Sandone, Griffin &
              Smith, Anchorage, for Appellees.

              Before: Fabe, Chief Justice, Carpeneti, Winfree, and
              Stowers, Justices. [Maassen, Justice, not participating.]

              FABE, Chief Justice.


I.    INTRODUCTION
              An employee filed an affidavit of readiness for hearing in her workers’
compensation case approximately four years after her employer filed a controversion of
her written workers’ compensation claim. The employer petitioned to dismiss her claim
based on the statutory deadline for a hearing request in AS 23.30.110(c). After a
hearing, the Alaska Workers’ Compensation Board dismissed her claim, and the Alaska
Workers’ Compensation Appeals Commission affirmed the Board’s decision. Because
the employee did not file a timely request for a hearing and was not excused from doing
so, we affirm the Commission’s decision.
II.   FACTS AND PROCEEDINGS
             Brenda Pruitt worked as a licensed practical nurse at Providence Hospital
in 2004. On March 10, 2004, Pruitt injured her back while pushing a medication cart.
She had to turn the cart around to respond to a call, and in so doing, the cart got caught
where the flooring changed from carpet to linoleum. When Pruitt tried to free the cart,
she heard a popping sound and then felt pain in her left lower back.
             Providence initially accepted the claim and paid disability benefits from
April 17, 2004, through January 11, 2005. On February 2, 2005, it controverted
temporary total disability (TTD), permanent partial impairment (PPI), reemployment,
and medical benefits based on its doctor’s opinion that Pruitt was medically stable and
had no permanent impairment.
             On February 8, 2005, an attorney filed a workers’ compensation claim on
Pruitt’s behalf, seeking TTD, permanent total disability (PTD), further medical costs, a
second independent medical evaluation (SIME), and attorney’s fees and costs.
Providence answered, denying all claims except the request for the SIME. Providence
also filed a controversion on February 10, 2005, which raised the same issues and
controverted the same benefits as its earlier controversion.
             Providence deposed Pruitt on April 7, 2005. During the course of the
deposition, Providence produced a report of injury for Pruitt’s similar on-the-job injury
with a different employer. It also produced a copy of a medical history form Pruitt had
completed in 2003, prior to beginning work at Providence. On that medical history form,
Pruitt denied “experienc[ing] any health problems or injuries connected with [her] past

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jobs” or having “been under a doctor’s care for back problems,” and stated that she had
never had an on-the-job injury. During her deposition, Pruitt testified that she had
experienced an injury very similar to the one at Providence when she was working at the
Fairbanks jail in 1995. She had also filed a stress-related workers’ compensation claim
when she worked at Bassett Community Hospital in Fairbanks. Pruitt was unsure
whether she had filed another stress claim when she was working for a contractor at
Hiland Mountain Correctional Center. She also testified that she hurt her back and knee
in a slip-and-fall at a store in 1998.
              Pruitt’s attorney withdrew in May 2005, mailing a copy of the withdrawal
notice to Pruitt on May 5, 2005. Pruitt later testified that the mailing address on the
withdrawal notice’s certificate of service was her mailing address in May 2005. On
July 1, 2005, Providence filed another controversion notice, this time controverting all
benefits, and it mailed the notice to Pruitt. The July controversion was based on
AS 23.30.022 1 and on a supplemental report by Providence’s doctor.
              A prehearing conference was held on February 8, 2006, which Pruitt
attended by telephone. According to the prehearing conference summary, “[t]he chair
directed Ms. Pruitt to call our office and make an appointment with a Workers’


       1
              AS 23.30.022 provides:
                     An employee who knowingly makes a false statement
              in writing as to the employee’s physical condition in response
              to a medical inquiry, or in a medical examination, after a
              conditional offer of employment may not receive benefits
              under this chapter if
              (1)     the employer relied upon the false representation and
              this reliance was a substantial factor in the hiring; and
              (2)   there was a causal connection between the false
              representation and the injury to the employee.

                                           -3-                                    6766

Compensation Technician for assistance in filing an [affidavit of readiness for hearing],
if she decides that she wants to continue with the case.” The summary also indicates that
Pruitt was “reminded” that she had to file an affidavit requesting a hearing within the
time limits set out in AS 23.30.110(c); the relevant part of the statute was included in the
prehearing conference summary.2 A copy of the summary was served on Pruitt on
February 9, 2006. Pruitt did not file an affidavit of readiness for hearing at that time.
              Pruitt left Alaska in 2007 and moved to Oklahoma. She received long-term
disability from Providence, but in 2008, after a medical evaluator for the long-term
disability insurance company reported that Pruitt’s only disabling condition was
depression, those benefits stopped.       Pruitt filed a new application for workers’
compensation benefits on August 7, 2009, making claims for all benefits. On August 26,
she filed an affidavit of readiness for hearing for her February 8, 2005 workers’
compensation claim. Providence filed a notice of controversion of the 2009 claim on
September 2, 2009, raising a number of defenses, including the defense that the affidavit
of readiness for hearing was untimely under AS 23.30.110(c). In October 2009
Providence filed a petition to dismiss the 2005 claim based on AS 23.30.110(c) and
AS 23.30.022.
              The Board held a hearing on the petition to dismiss. Pruitt represented
herself and was the only witness. Providence argued that Pruitt’s claim should be
dismissed under AS 23.30.110(c) because she failed to file anything within two years of
the 2005 controversions. It argued in the alternative that her claim should be barred
because of her misleading answers on the 2003 employee health questionnaire.



       2
             AS 23.30.110(c) provides in part, “If the employer controverts a claim on
a board-prescribed controversion notice and the employee does not request a hearing
within two years following the filing of the controversion notice, the claim is denied.”

                                            -4-                                       6766
              Pruitt testified that she had not received the notice of withdrawal from her
attorney, although she agreed that the address on the certificate of service was her
mailing address in May 2005. She also testified that she was under the impression that
her attorney would submit or had submitted the necessary paperwork for her claim. She
did not remember the details of the February 2006 prehearing conference, nor did she
remember getting a copy of the prehearing conference summary. Pruitt testified that she
“didn’t even think of” the fact that her attorney was not at the prehearing conference in
2006 and so did not realize then he was no longer representing her. She indicated that
she had no contact with the attorney from the time she left Alaska until sometime in
2009, when she contacted him again. She allowed that she had frequently submitted
copies of her medical records to Providence but explained that she was sending
information to Providence in relation to her long-term disability claim rather than
workers’ compensation claims.
              The Board dismissed Pruitt’s claim pursuant to AS 23.30.110(c) and
retained jurisdiction over a possible denial of benefits based on AS 23.30.022. The
Board decided that Pruitt’s statements at different times were inconsistent and not
credible.   It also found her statement that she did not understand the workers’
compensation process to be not credible. And it found not credible her statements that
she did not know her attorney had withdrawn until 2009 and that she did not know that
she had to request a hearing within two years.
              The Board decided that Pruitt had not “establish[ed] a legal excuse” for
failing to file a timely affidavit of readiness for hearing and found that the Board had met
its duty to inform Pruitt of the statutory deadline. The Board determined that Pruitt was
motivated to take action again in her workers’ compensation case in 2009 because her
long-term disability benefits were discontinued in August 2008. The Board dismissed



                                            -5-                                       6766

her case under AS 23.30.110(c) and decided that it did not need to reach the question of
denial of benefits under AS 23.30.022.
              Pruitt appealed to the Alaska Workers’ Compensation Appeals
Commission, arguing that because of her mental condition and medication she was
unable to understand fully what she was required to do. The Commission initially
reversed the Board decision and remanded for further fact finding. The Commission was
concerned that Pruitt had adequately raised a question about her mental competence and
ability to understand the notice about the deadline for filing an affidavit of readiness for
hearing, and it remanded to the Board for further factual findings on the issue.
              But Providence asked for reconsideration, arguing that the Board had in fact
made adequate findings on Pruitt’s competence, pointing to the Board’s findings that
Pruitt was not credible when she said that she (1) did not understand the workers’
compensation process, (2) was unaware for four years that her attorney had withdrawn,
and (3) did not know she had to request a hearing within two years. Providence also
contended that Pruitt’s mental health records in the record before the Board did not in
any way imply she was incompetent.
              The Commission reconsidered its decision and, on reconsideration, affirmed
the Board. The Commission concluded that substantial evidence supported the Board’s
finding that “Pruitt understood what was required of her under AS 23.30.110(c).”
Because the Board found that Pruitt understood the statutory requirement and failed to
file an affidavit of readiness for hearing within the statutory deadline, the Commission
affirmed the Board’s dismissal of her 2005 claim.
              Pruitt appeals.




                                            -6-                                       6766

III.	   STANDARD OF REVIEW
              In an appeal from the Alaska Workers’ Compensation Appeals
Commission, we review the Commission’s decision.3 We independently review the
Commission’s legal conclusion that substantial evidence in the record supports the
Board’s findings, which “necessarily requires us to independently review the record and
the Board’s factual findings.”4 The Board has the sole power to determine the credibility
of a witness.5
IV.	    DISCUSSION
        A.	   The Commission Properly Affirmed The Board’s Dismissal Of Pruitt’s
              Claim.
              Pruitt argues here that she should be excused from the statutory deadline
for requesting a hearing because she was relying on her attorney to ask for one. She
asserts that her failure to comply with the deadline was “excusable neglect” because she
thought she was getting workers’ compensation benefits and so “had no reason to believe
that anything was out of the ordinary.” She also contends that Providence has not shown
prejudice in the late filing “other than by [her] non-compliance” with AS 23.30.022.
              Pruitt’s claim was dismissed because she failed to meet the statutory
deadline for filing a request for hearing. Alaska Statute 23.30.110(c) provides in part:
              Before a hearing is scheduled, the party seeking a hearing
              shall file a request for a hearing together with an affidavit
              stating that the party has completed necessary discovery,
              obtained necessary evidence, and is prepared for the
              hearing. . . . If the employer controverts a claim on a board­


        3
             Shehata v. Salvation Army, 225 P.3d 1106, 1113 (Alaska 2010) (citing
Barrington v. Alaska Commc’ns Sys. Grp., Inc., 198 P.3d 1122, 1125 (Alaska 2008)).
        4
              Smith v. CSK Auto, Inc., 204 P.3d 1001, 1007 (Alaska 2009).
        5
              AS 23.30.122.

                                           -7-	                                    6766

               prescribed controversion notice and the employee does not
               request a hearing within two years following the filing of the
               controversion notice, the claim is denied.
               We have compared the failure-to-prosecute provision of AS 23.30.110(c)
to a statute of limitations6 and interpreted the term “claim” in this statutory subsection
to mean a written application for benefits.7 In Kim v. Alyeska Seafoods, Inc., we decided
that substantial rather than strict compliance with AS 23.30.110(c) could avoid claim
denial.8 We observed there that the Commission had recognized the Board’s power to
excuse strict compliance with the statute for equitable reasons.9 But we also said that we
did “not suggest that a claimant can simply ignore the statutory deadline and fail to file
anything.”10
               Here, Pruitt failed to file anything within the allotted time. She filed a
written application for benefits in February 2005. Providence filed two controversions:
one in February 2005, shortly after she filed her written application, and one in
July 2005, after her deposition. Pruitt needed to request a hearing by July 1, 2007, at the
latest, to avoid the time bar of AS 23.30.110(c). She did not file anything indicating she
wanted to prosecute the 2005 written claim until August 2009, well after the statutory
deadline expired.



       6
             Tipton v. ARCO Alaska, Inc., 922 P.2d 910, 912 n.4 (Alaska 1996) (citing
Jonathan v. Doyon Drilling, Inc., 890 P.2d 1121, 1122 (Alaska 1995)).
       7
               Jonathan, 890 P.2d at 1124.
       8
               197 P.3d 193, 196-97 (Alaska 2008).
       9
             Id. at 197 (quoting Morgan v. Alaska Reg’l Hosp., AWCAC Dec. No. 035
at 17-18 (Feb. 28, 2007)).
       10
               Id. at 198.

                                             -8-                                     6766

              Pruitt does not explicitly argue that filing the 2009 affidavit constituted
substantial compliance with the deadline, but she summarizes Kim in her brief.11
Providence argues that the record supports the determination that Pruitt did not
substantially comply with the statute. The Commission decided that Pruitt had not
substantially complied with AS 23.30.110(c); the Board did not differentiate between
substantial and strict compliance — it simply dismissed her February 2005 claim
pursuant to AS 23.30.110(c).
              We agree with the Commission that Pruitt did not substantially comply with
the statute. The prehearing conference summary from February 2006 shows that the
Board told Pruitt to contact staff at the Board “for assistance in filing an [affidavit of
readiness for hearing], if she decides she wants to continue with the case.” It also gave
Pruitt some warning, in addition to the warnings on the notices of controversion, that she
had to file a request for a hearing within two years of the controversions. Yet in spite of
this information, Pruitt took no action in her case for more than three years, waiting until
her long-term disability ended to take action on her workers’ compensation claim. Her
2009 hearing request cannot be considered substantial compliance with the statute.
              Pruitt argues here that she should be excused from complying because she
relied on her attorney to protect her interests. Providence responds that substantial
evidence supports the Commission’s decision that Pruitt’s failure to comply with the
statute was not excused.
              The Board found that Pruitt’s “assertion she was unaware her attorney
withdrew and was relying upon him to file the necessary paperwork lacks credibility.”



       11
             We hold the pleadings of pro se litigants to less stringent standards than
those of lawyers. Smith v. CSK Auto, Inc., 204 P.3d 1001, 1011 (Alaska 2009) (citing
DeNardo v. Calista Corp., 111 P.3d 326, 330 (Alaska 2005)).

                                            -9-                                       6766
The Board “has the sole power to determine the credibility of a witness.”12 Its credibility
findings are binding on the Commission.13 The Board’s credibility determination
disposes of Pruitt’s argument that her reliance on her attorney excused her from
complying with the statute. If Pruitt was not truthful in asserting that she relied on her
attorney to file the affidavit of readiness for hearing, this purported reliance cannot
excuse her noncompliance. The Commission thus correctly concluded that substantial
evidence in the record supported the Board’s determination that Pruitt did not
substantially comply with AS 23.30.110(c).
              In its first decision, the Commission decided the Board did not make
adequate findings about whether Pruitt’s noncompliance with AS 23.30.110(c) should
be excused due to mental incompetence. Pruitt argued in her brief to the Commission
that her mental health problems, including depression, interfered with her ability to
understand what was required of her and to comply with the statute. She inquired at the
Board hearing about the possibility that a guardian could be appointed for her. In its
reconsideration request, Providence set out evidence from the Board’s record indicating
that Pruitt was in fact competent during the course of the proceedings, including chart
notes from a psychologist and a mini mental status exam. On reconsideration, the
Commission reversed course and affirmed the Board.
              The Commission correctly concluded on reconsideration that the Board
made adequate findings. The Board specifically found that Pruitt’s assertion that “she
did not understand the workers’ compensation process lack[ed] credibility.” It also
found not credible her “assertion she that she did not know she had to request a hearing




       12
              AS 23.30.122.
       13
              AS 23.30.128(b).

                                           -10-                                      6766
within two years.” In spite of Pruitt’s mental health condition,14 the Board did not
believe her insistence that she did not understand the steps she had to take to preserve her
claim. The Board’s credibility determination negates any argument that Pruitt’s failure
to file a timely hearing request should be excused because of lack of understanding.
V.      CONCLUSION
              We AFFIRM the Commission’s decision.




        14
              Pruitt was diagnosed with depression and took medication for it for some
time.

                                           -11-                                       6766
