Introduction
Today's opinion holds that the board erred when it decided that the ninety-day period to request an eligibility evaluation for reemployment benefits starts when an employee knows or should know that his injury may permanently prevent him from returning to his job.1 The court reasons that to reach this conclusion the board would have had to promulgate a regulation under the Administrative Procedure Act (APA) and could not do so by interpreting the applicable statute and regulations. I disagree.
The board concluded that AS 23.30.041(c) required Burke to request an evaluation within ninety days after the point at which he reasonably should have known that he needed retraining. Since Burke knew by February 25, 2003, that he could not return to his job, and did not request an evaluation until September 11, 2003, 198 days later, the board held that Burke's request was untimely. The board's conclusion that the statutory ninety-day deadline began to run anew when Burke knew or should have known that he needed retraining was consistent with prior board rulings that "knowledge of the need for reemployment benefits retriggers the running of the 90 day period to request these benefits." The board noted that its ruling was necessary in order to give meaning to the statute in accordance with the purpose of the legislature. It observed that under the reemployment benefit administrator's (RBA) conflicting interpretation, "an employee could request reemployment benefits years, or decades, after being advised of the need for retraining."
In my view the board's ruling was correct. Nothing in the regulations concerning subsection .041(c) undercut the validity of the board's prior rulings. Burke did not rely upon the APA — which requires agencies to act by promulgating regulations in certain circumstances. Further, the APA did not prohibit the board from ruling as it did. *Page 870 The Discovery Rule
The court's discussion is, for me at least, hard to follow. One problem lies with the court's use of the term "discovery rule." A discovery rule is a rule relieving a claimant from compliance with a statutory limitations period where the claimant reasonably lacks the opportunity to have "discovered" sufficient information to file a claim.2 Once the claimant discovers or should have discovered sufficient information about the claim, the whole period of limitations is retriggered and begins to run anew.3 Thus the discovery rule in Alaska has two parts. What might be called Part A grants relief from a statutory limitations period, while what might be called Part B retriggers the limitations period. Both parts are rules of statutory interpretation. We assume that the legislature would not wish to impose a deadline on a claimant before the claimant has "discovered" his claim. We also assume that once such a "discovery" has been made the legislature would want the statutory deadline to begin to run.4 Confusingly, the court (except in footnote 45) uses the term "discovery rule" only to refer to Part B, the retriggering aspect of the discovery rule.5 It also does not seem to recognize that the discovery rule is a rule of presumed legislative intent designed to balance two competing policies: "the basic fairness of insuring a plaintiffs right to seek relief," and the interests that underlie limitations periods.6 The Board's Retriggering Ruling Followed Established Law
Under AS 23.30.041(c) employees had ninety days to apply for an eligibility evaluation unless extenuating circumstances prevented a timely submission.7 The extenuating circumstances provision was a type of discovery rule granting relief from the limitations period — thus encompassing what I have called Part A of the discovery rule. But subsection .041(c), like other statutes of limitations, said nothing about retriggering the statutory period. In other words, no Part B was expressed.
The regulations defined "extenuating circumstances" to include cases where the worker was not told by his physician that he would not be able to return to his job within the ninety-day period.8 Here, the worker met this extenuating circumstance: he was not told of his inability to return to work within the ninety-day period. Rather, he was told nearly sixteen months after the event. But he did not apply for retraining until more than ninety days after that. Was his application time-barred? To answer this question one must interpret the statute and the regulations. Did the statute and regulations mean that when the worker received notice and the extenuating circumstance terminated the worker had a new ninety-day period in which to apply? Or did they mean that the worker had an indefinite period in which to apply? Both the statute and the regulations were silent on this issue. *Page 871
The board decided that there was a new ninety-day period. This interpretation was readily predictable. Decisions of this court have uniformly applied what I have called Part B of the discovery rule: when conditions excusing late filing of a claim no longer exist, a new deadline for filing is imposed that is equal in duration to the legislatively set deadline.9 Prior decisions of the board, decided both before and after the regulations became effective, had recognized and applied this rule to .041(c)'s ninety-day deadline.10 As the board stated, "the Board has a long, consistent history of finding that knowledge of the need for reemployment benefits retriggers the running of the 90 day period to request these benefits."11
The board's ruling in this case that a new ninety-day period would begin to run when the extenuating circumstance terminated was as correct as it was predictable. The regulations are silent on the question of whether a new deadline will be imposed. In light of this silence, there was no reason to believe that the board's prior rulings would not continue to be effective. Indeed, if the regulations had explicitly stated that once extenuating circumstances ended, the worker had an unlimited time to file an application, they probably would have been invalid12 because *Page 872 they would not have been consistent with the statutory purpose of requiring applications within a short period of time.13
For me, this would be the end of the discussion. But today's opinion holds that any retriggered ninety-day deadline should be established by regulation. Because it was not, the opinion holds that the board's ruling is invalid and workers therefore had an unlimited or indefinite time to apply after extenuating circumstances terminated.14 I view this holding with considerable skepticism because its result conflicts with the legislative intent underlying the ninety-day limit, our own case law, and the board's case law. The court bases this seemingly counter-intuitive conclusion on the APA.15 For the following reasons, I do not think that the APA should guide our decision.
Burke Did Not Raise Any Contention Regarding the Administrative ProcedureAct
Burke did not make any argument before the board, the superior court, or this court relying on, citing, or even mentioning the APA. Instead, Burke argued that because the board in promulgating the regulation did not provide for a renewed ninety-day dead-line, the board "did not want" such a dead-line. In today's opinion the court states: "Burke asserts that the board cannot by adjudication `add requirements to the law that neither the legislature nor the executive branch in its rule-making power chose to add to the Act or regulations, respectively.'"16 The full sentence in Burke's brief from which this quote is taken reads: "Neither the RBA nor the board can add requirements to the law that neither the legislature nor the executive branch in its rule-making power chose to add to the Act or regulations, respectively." What Burke means by this statement is that the board could not hold that a new ninety-day period is triggered because doing so would be contrary to the intent of the legislature and the intent of the board; he does not argue that doing so would be contrary to the provisions of the APA requiring agencies to act by adopting regulations.17 *Page 873
Because no argument regarding the APA's requirements was raised, the appellee has not had a fair opportunity to weigh in on the question of whether the board's ruling should be considered invalid because it should have been expressed as a regulation. As already noted, Burke also did not raise the APA contention before the board or the superior court. Therefore, this court has not received the benefit of the analysis of the parties, the board, or the superior court on this point. Under these circumstances, it seems to me that whether the APA precluded the board from adjudicatively interpreting the statute and regulations should properly play no part in this court's decision.18 The Administrative Procedure Act Was Not Violated
My conclusion that the APA should not be considered in this case seems especially well justified given the opacity of the question of under what circumstances the APA may require rulemaking. In Alyeska Pipeline ServiceCo. v. State, Department of Environmental Conservation, 19 we recognized the conflict between the broad language of the APA and the practical exigencies of agency action:
Although the definition of "regulation" is broad, it does not encompass every routine, predictable interpretation of a statute by an agency. Nearly every agency action is based, implicitly or explicitly, on an interpretation of a statute or regulation authorizing it to act. A requirement that each such interpretation be preceded by rulemaking would result in complete ossification of the regulatory state. . . . Although the Administrative Procedure Act may require rulemaking in cases in which an agency's interpretation of a statute is expansive or unforeseeable, or in cases in which an agency alters its previous interpretation of a statute, obvious, commonsense interpretations of statutes do not require rulemaking.20
Today's opinion argues that the APA applies to the board's interpretation because the board's interpretation is new: "It works to modify the requirements employees must meet in order to qualify for an eligibility evaluation under former AS 23.30.041(c)" and "it changes the requirements for a reemployment eligibility evaluation request from those set out in the regulations."21 But the board's interpretation was neither new nor a change. This court has consistently adhered to Part B of the discovery rule, holding that statutory deadlines spring to life anew once conditions excusing initial noncompliance with them have ended.22 There was no reason to suppose that these holdings would not apply to the ninety-day deadline in AS 23.30.041(c). The board, indeed, had always applied just such a rule to subsection .041(c).23 Since the regulations are completely silent on the subject of the deadline to be imposed after extenuating circumstances *Page 874 come to an end, there was no reason to think that the board's prior rulings on that subject would not apply. And if it were supposed that the regulations signaled a change from the prior interpretation of subsection .041(c), the board's rulings in the Gillen and Jerry cases which were decided under the regulations (Gillen more than three years before the board's decision in this case) would put an end to any such notion.24
All of the quoted factors mentioned in Alyeska Pipeline point to the conclusion that the board's decision in this case was permissibly made as an adjudication that did not require rulemaking under the APA. This case does not involve an "expansive or unforeseeable interpretation," nor is it a case in which an agency had altered "its previous interpretation of a statute."25 Instead, the board's interpretation was in accord with its prior decisions and was therefore foreseeable.26 Further, in light of the decisions of this court, the board, and the intent of the legislature, the board's ruling was also "an obvious, commonsense interpretation[]" of the statute and regulations.27 Here, as inAlyeska Pipeline, I would conclude that the agency's action "do[es] not require rulemaking."28 Conclusion
Alaska Statute 23.30.041(c) is a statutory expression of Part A (relief from a statutory deadline) of the discovery rule. It is silent as to Part B (retriggering the deadline). Before and after the adoption of the regulations, the board interpreted the statute, in accordance with Part B of the discovery rule, to retrigger the ninety-day deadline once exigencies had passed. The regulations" which concerned relief but not retriggering" did nothing to call this interpretation into question. Burke did not contend that the APA was violated. The board's reaffirmation in this case of its longstanding interpretation of the statute did not, in any event, violate the APA because the APA does not apply to the foreseeable, common sense rulings of an agency.
For these reasons, I would affirm the board's ruling. On the other issues presented by this case, I agree with the court's opinion.
If an employee suffers a compensable injury that may permanently preclude an employee's return to the employee's occupation at the time of injury, the employee or employer may request an eligibility evaluation for reemployment benefits. The employee shall request an eligibility evaluation within 90 days after the employee gives the employer notice of injury unless the administrator determines the employee has an unusual and extenuating circumstance that prevents the employee from making a timely request. The administrator shall, on a rotating and geographic basis, select a rehabilitation specialist from the list maintained under (b)(6) of this section to perform the eligibility evaluation.
Stark, supra, is a good example of a board ruling interpreting subsection .041(c) before the regulations were effective. In Stark, the notice of injury was given on September 24, 1996, but the employee did not request an evaluation until August 12, 1997. Reversing a contrary determination of the RBA, the board found that until June 3, 1997, the employee had no reason to believe he could not return to his usual work. Since the employee's request was made within ninety days of this date, it was held to be timely. The board noted, in accordance with its prior decisions, that "the 90-day period for requesting an eligibility evaluation begins to run when the employee knew or should have known that he might not be able to return to the work he was doing at the time of injury." Id. at *5.
Not long after the regulations in question were adopted, the RBA concluded, just as the RBA did in the present case, that in light of the new regulations "there is no new 90-day limit imposed after an employee is informed by a physician that he may be permanently precluded from returning to work at the time of the injury." Gillen, supra, at *2. The board reversed this legal conclusion, in keeping with its pre-regulation decisions that the "90-day time period under AS 23.30.041(c) begins to run when the employee knew, or should have known, the injury may permanently preclude him from returning to his occupation at the time of injury." Id. at *5.
Jerry, supra, is another post-regulation case. In Jerry the notice of injury seems to have been given shortly after the injury itself, which occurred on August 11, 2000. The employee requested an evaluation on December 27, 2002. The RBA held that this request was untimely because the ninety-day period began to run on March 30, 2001, when the employee received a release to return to work that specifically limited the employee's capacities. The board affirmed the RBA's decision, noting as in previous decisions, "that the 90-day period begins to toll when the employee knew or should have known that he may be precluded from returning to his occupation at time of injury." Id. at *5, 6.
Alaska Statute 23.30.041(c) directs that the injured worker shall request an evaluation within 90 days after the worker has given his/her employer notice of the injury. If the employee lacked the requisite knowledge within this time period, then the Alaska Workers' Compensation Board has ruled that the employee must request an evaluation no later than 90 days after the employee knew or should have known that they might not be able to return to the work they were doing at the time of injury.
Similarly, Burke's attorney acknowledged in his brief before the board that
[n]umerous Board cases have adopted that principle [retriggering the ninety-day limitations period] both in situations where the claimant did not make the request within 90 days (without actual notice of any doctor's opinion within the 90 days) and in cases when the request was made outside the 90[day] period (where the notice was given outside the 90 day window but the request was made more than 90 days after that date).
Judge Bolger also noted, when this case was appealed to the superior court, that "the RBA's interpretation ignores the Board's longstanding interpretation of the statute." Judge Bolger concluded that "the Board has applied a consistent interpretation of the statute and regulation, which requires an employee to make an application within 90 days after the extenuating circumstances have resolved."
[T]he RBA's application of the 90-day requirement does not comport with the Legislature's intent that benefits be provided in a manner that is "quick, efficient, fair and predictable. . . ." Under the RBA's interpretation, an employee could request reemployment benefits years, or decades, after being advised of the need for retraining. We find that interpretation to be neither quick, efficient, fair, predictable, or reasonable to employers.
(Citations omitted.)
The legislative history of the ninety-day limit set by AS 23.30.041(c) indicates that it was the product of considerable deliberation. The initial bill set a sixty-day limit but advocates of workers testified that sixty days would be too early in many cases. See Senate Bill (S.B.) 322, § 6, 15th Leg., 2d Sess. (Jan. 11, 1988) (imposing sixty-day requirement); Meeting of the Joint Senate and House Labor and CommerceCommittee, 15th Leg., 2d Sess. (Jan. 29, 1988) (testimony of Joe Kalamarides and Steve Montooth). A representative of vocational rehabilitation counselors testified that workers need to start the rehabilitation process as early as possible and advocated that referral for evaluation be mandatory at ninety days post injury. Meeting of theJoint Senate and House Labor and Commerce Committee, 15th Leg., 2d Sess. (Feb. 12, 1988) (testimony of Dennis Johnson, President, Alaska Chapter of National Association of Rehabilitation Professionals in the Private Sector). The limit was changed to ninety days in recognition of these concerns. The court's view in this case that "a delay of about three months — "that is ninety days plus about three more months — is "certainly not an unreasonable amount of time given the length of time that had passed" (and therefore the filing was timely) is inconsistent with the legislative judgment reflected by the ninety-day deadline and this history. See Op. at 868.