Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

HARVEY MARK EDER, 

Appellant, 

v. 

M-K RIVERS and 

WESTCHESTER FIRE INSURANCE 

CO. 

Appellees. 

_______________________________ 

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) Supreme Court No. S-15871 

Alaska Workers’ Compensation 

Appeals Commission No. 14-017 

O P I N I O N 

No. 7130 – October 21, 2016 

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Appeal from the Alaska Workers’ Compensation Appeals 

Commission. 

Appearances: Harvey Mark Eder, pro se, Santa Monica, 

California, Appellant. Randall J. Weddle and Troy D. 

Bittner, Holmes Weddle & Barcott, P.C., Anchorage, for 

Appellees. 

Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and 

Bolger, Justices. 

STOWERS, Chief Justice. 

I. INTRODUCTION 

In 2012 a worker whose Alaska workers’ compensation case was closed in 

1977 filed a new claim related to his injury from the 1970s. The Alaska Workers’ 

Compensation Board dismissed the new claim, and he appealed to the Alaska Workers’ 

Compensation Appeals Commission. The Commission granted the worker three 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

extensions of time to file his brief and later issued an order to show cause why the appeal 

should not be dismissed. The Commission dismissed the appeal, relying on its 

interpretation of a Board regulation. We reverse the Commission’s decision. 

II. FACTS AND PROCEEDINGS 

Harvey Eder worked for MK-Rivers on a construction project related to the 

Alaska pipeline. He injured his neck at work in July 1975 and received temporary total 

disability (TTD) for the injury. In a 1977 decision the Alaska Workers’ Compensation 

Board denied further TTD because it thought Eder was “exaggerating his problems for 

secondary gain (additional compensation).” 

Eder moved back to California and at one point worked for a locksmith. 

He was injured in a work-related car accident in the early 1980s while working for that 

business and received California workers’ compensation benefits for those injuries. 

Doctors in California attributed a percentage of Eder’s disability to the initial Alaska 

injury. 

Eder filed a pro se written claim for permanent total disability (PTD) in 

Alaska in 1986; the record reflects that he was raising a claim for a “latent defect” at that 

time. Shortly after Eder filed the claim an attorney entered an appearance on his behalf. 

Nothing in the record indicates the Board held a hearing on the 1986 claim, and at the 

2014 hearing M-K Rivers’s attorney said, “That [1986 claim] disappeared. It just went 

away.” The record contains several depositions taken in the Alaska case from the 1980s 

as well as a “Statement of Readiness to Proceed” filed on Eder’s behalf. In the Board’s 

2014 decision, the Board did not discuss the 1986 written claim, saying only that Eder 

“sought assistance from [an] . . . attorney . . . in 1986 to explore reopening his claim”; 

the Board noted Eder’s testimony that his attorney had died and because of his death “the 

claim was not pursued.” 

Eder began to experience mental health problems at some point in the 

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1980s. His psychiatric diagnoses included paranoid schizophrenia, polysubstance abuse 

disorder, dysthymic disorder with anxiety, and “somatic delusion.” His treating 

psychiatrist in California attributed his mental decompensation to the work-related car 

accident, and the judge in the California workers’ compensation case apportioned about 

60% of Eder’s mental disability to that accident. 

In 2012, for reasons that are not readily apparent from the record, Eder 

sought to reopen his Alaska workers’ compensation case, again requesting PTD. At a 

prehearing conference his claim was amended to include permanent partial impairment, 

medical and transportation benefits, reemployment benefits, and penalties and interest. 

M-K Rivers filed an answer and several controversion notices. It then filed a petition to 

dismiss the claimbased on res judicata grounds, arguing that the claims Eder was making 

in 2012 had been decided in the 1977 decision. 

After a hearing the Board dismissed Eder’s 2012 claim on res judicata 

grounds, rejecting Eder’s “implicit” theory that the time for appeal of the 1977 decision 

should have been tolled because he was mentally incompetent throughout this time 

period. Noting that Eder had contacted an Alaska attorney in 1986, the Board thought 

Eder’s California workers’ compensation case contained ample evidence that he was at 

least competent enough to cooperate with attorneys to secure benefits. 

Eder appealed to theAlaskaWorkers’CompensationAppealsCommission. 

He requested and was granted a waiver of fees and transcription costs. He then asked 

for a series of extensions of time in which to file his opening brief. The first motion is 

fairly legible; in it Eder asked for a ten-day extension so that he could copy an additional 

2,004 pages from the Board record and “look for missing evidence.”1 He also asked that 

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1 He did not explain what evidence might be missing. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

his employer pay for his travel expenses because he was homeless.2 The Commission 

granted a ten-day extension of time. 

The Commission clerk wrote a memo to the file in October 2014, recording 

a series of phone calls from Eder and her investigation of the questions he raised. Eder 

indicated he had two “CDs that contained 7,200 pages of the record” but he was “trying 

to figure out what the other 2,300 pages in the record [were].” The Commission clerk 

called the Board; according to her memo, the CD contained the Board record as of 

February 2014, when Eder had requested a copy of the record; because Eder had not 

made another request for a copy, the Board had not supplied him with a copy of the rest 

of the file. A later note in the record shows that the Board did not have the last 2,300 

pages of the record on a CD.3 

Eder filed two additional requests for extensions of time to file his brief in 

the Commission, both of which appear to be copies of the initial request with additional 

writing on them. The second motion informed the Commission that Eder was still 

homeless and asked for up to 90 days to file his brief. The third request contained 

additional writing that is largely illegible. The Commission granted both requests, but 

2 A memo to the file from the Commission’s clerk indicates that Eder called 

and reported that he had spoken with the insurer’s attorney, who agreed to a 30-day 

extension of time but would not agree to pay for Eder to come to Alaska to review the 

record. 

3 There may have been some miscommunication about the CD. A Board 

employee wrote Eder in February 2014 to tell him that the Board had scanned his 7,358 

pages of “medical records” into the Board’s “ICERS database.” The Board evidently 

sent copies of a CD containing the records to Eder and M-K Rivers and told Eder the 

records had not yet been admitted into evidence. A California attorney had also sent 

copies of documents from the California case to M-K Rivers’s attorney, who copied the 

documents, numbered them, and returned them. There was evidently some question 

whether the documents Eder sent to the Board were the same documents the attorney had 

sent to M-K Rivers. 

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it indicated that the third one would be the last. On the same day that Eder asked for the 

third extension of time, he filed copies of the Commission’s pro se briefing forms with 

what appear to be handwritten notes on them as well as Board forms related to medical 

records. Much of the writing is indecipherable, but some of it appears to refer to Eder’s 

case. For example, underneath “why didn’t I appeal” is written “severe depression”; the 

document also refers to transcripts and a “missing record of tape” from 1976. 

In the December 23, 2014 order granting the third extension, the 

Commission cited one of its regulations4 and notified Eder that 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.” Eder filed a petition for review of the 

Commission’s third order with this court. 

In January Eder filed two motions with the Commission: a fourth motion 

for extension of time and a motion to stay the proceedings while the petition for review 

was pending. The Commission denied the request for extension of time, noting that it 

had previously granted several extensions of time, for a total of 80 days. It decided it 

would only stay the proceedings if this court granted review. We denied review on 

February 3, 2015. 

On January 29 the Commission issued an Order to Show Good Cause, 

4 8 Alaska Administrative Code (AAC) 57.250(a) (2011) provides: 

If an appellant fails to comply with AS 23.30.125 – 

23.30.128, fails to comply with this chapter, fails to pay the 

cost of preparing the transcript, as provided in 

8 AAC 57.120(j), or fails to comply with an order of the chair 

or commission, the chair will issue written notice to the 

appellant that specifies the nature of the failure and states that 

the appeal may be dismissed for failure to prosecute if the 

appellant fails to take appropriate corrective action no later 

than 20 days after receipt of the notice. 

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giving Eder about two weeks to show cause why his appeal should not be dismissed for 

failure to prosecute. Eder responded, saying that (1) he did not have “the missing 

evidence [his] file added”; (2) he was homeless; and (3) he was heavily in debt, which 

made his compensable disability greater. He argued that the balance of hardships 

“cite[d]” that the “information (as stated in [his] recent motion) should be provided to 

[him]” and “incorporat[ed] all of [his] record in this case by reference that support[ed 

his] position.” 

The Commission dismissed the appeal. Calling Eder’s personal 

circumstances “unfortunate,”theCommission decided therewas“noapplicable‘balance 

of hardships’ law requiring the commission to provide [Eder] with the requested 

documents/evidence.” Instead, the Commission cited a Board regulation and said that 

regulation “precludes the workers’ compensation division, which includes the 

commission, from providing documents/evidence at no charge to [Eder].” 

Eder appealed the dismissal.5 Concerned that some of Eder’s briefing 

suggested he wanted this court to review the substance of the Board’s decision, 

M-K Rivers moved to limit the appeal to the question whether the Commission abused 

its discretion in dismissing the appeal, arguing that the Commission had yet to review the 

merits of the Board’s decision. We granted M-K Rivers’s motion.6 The sole issue before 

us is thus whether the Commission’s dismissal decision was correct. 

III. STANDARD OF REVIEW 

In an appeal from the Alaska Workers’ Compensation Appeals 

5 As part of Eder’s motion to waive fees he asked for a copy of the record; 

the appellate clerk’s office sent him a CD with a scanned copy of the record. 

6 Eder also moved for a stay of the present appeal pending Board action on 

another claim. We denied the stay. 

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Commission, “we review the Commission’s decision rather than the Board’s.”7 We 

apply our independent judgment to questions of law that do not involve agency 

expertise.8

 Our review of an agency’s interpretation of its own regulation is reviewed 

under the reasonable basis standard, but “we independently review whether a regulation 

applies to a case.”9 Review of an agency’s application of its own regulations to the facts 

of a case “is limited to whether the agency’s decision was arbitrary, unreasonable, or an 

abuse of discretion.”10 We will find an abuse of discretion when the agency action is 

“arbitrary, capricious,manifestly unreasonable, or . . . stems froman improper motive.”11 

IV. DISCUSSION 

A. The Commission Abused Its Discretion In Dismissing Eder’s Appeal. 

1. 8 AAC 45.030 

Ultimately this appeal is about access to the appellate record for pro se 

litigants in workers’ compensation cases. Even though Eder’s pleadings are difficult to 

read at times, the record is clear that he sought a complete copy of the Board record 

before he filed his brief with the Commission.12 Accessing the record can be an 

7 Humphrey v. Lowe’s Home Improvement Warehouse, Inc., 337 P.3d 1174, 

1178 (Alaska 2014). 

8 Monzulla v. Voorhees Concrete Cutting, 254 P.3d 341, 343 (Alaska 2011). 

9 Garner v. State, Dep’t of Health & Soc. Servs., Div. of Med. Assistance, 

63 P.3d 264, 268 (Alaska 2003). 

10 Griffiths v. Andy’s Body & Frame, Inc., 165 P.3d 619, 623 (Alaska 2007) 

(quoting Hodges v. Alaska Constructors, Inc., 957 P.2d 957, 960 (Alaska 1998)). 

11 Sheehan v. Univ. of Alaska, 700 P.2d 1295, 1297 (Alaska 1985) (quoting 

Tobeluk v. Lind, 589 P.2d 873, 878 (Alaska 1979)). 

12 He makes clear in his opening brief before us that he wants “a complete 

hard copy” of the record. 

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important part of presenting an appeal, and it is not clear whether or when the 

Commission waives for self-represented litigants its requirement that an excerpt of 

record be filed.13 

In reaching its decision here the Commission applied its own regulations 

about dismissal of appeals, but it also relied on one of the Board’s regulations. The 

Commission cited 8 AAC 45.030, a Board regulation, reasoning that this regulation 

“precludes the workers’ compensation division, which includes the commission, from 

providing documents/evidence at no charge to the appellant.” The Commission did not 

identify which subsection of the regulation it was interpreting. 

Eder argues that he was unable to get a complete copy of the record and 

that, without a copy of the record, he “can’t file an [excerpt] of the record.” Eder 

disagrees with the Commission’s interpretation of the Board’s regulation; he says the 

Commission “lies when they say that they are required by state [l]aw not to get [him] a 

copy of [the] ‘whole record’ [so he] . . . could write [his] opening brief” because the 

regulation says “may” rather than “shall.” Eder also appears to argue that he submitted 

“a very casual” rough draft of a brief to the Commission and complains that the 

Commission denied him more time to complete the briefing.14 

M-K Rivers argues that the Commission’s decision should be upheld under 

the abuse of discretion standard because the Commission properly applied applicable 

statutes and regulations. It also argues that Eder did not show good cause to the 

Commission because Eder’s “Show of Good Cause contained no basis upon which good 

13 8AAC57.170providesthat“[p]arties shall prepareexcerpts ofrecord”that 

are due at the same time as their briefs. 8 AAC 57.180 lists certain documents that 

“must” be in the excerpt of record. 

14 We assume this assertion is related to the documents Eder filed with his 

third motion for extension of time. 

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cause could be found.” M-K Rivers also cites a Board regulation, 8 AAC 45.030(c), 

requiring an appellant to pay the cost of preparing the record on appeal as a basis to 

justify the Commission’s decision. It argues that Eder was not adequately diligent in 

pursuing the appeal, that the Commission provided him adequate time to file a brief, and 

that continued delay would frustrate the purpose of providing “a ‘prompt, fair, and just 

disposition’ of the appeal.” 

We disagree with M-K Rivers’s contention that the Commission properly 

applied the applicable regulations. Even assuming that the Board’s regulation applies 

to the Commission,15 the regulation does not prohibit the Division of Workers’ 

Compensation from waiving copying fees for indigent parties. The first subsection of 

the regulation provides: “The division will charge no fees for any act done by it except 

(1) reasonable duplication fees may be charged for copying board files, papers, 

documents, orders, or decisions . . . .”16 The regulation then permits the division, “for 

reasons of administrative convenience,” to “refuse to duplicate or copy material for a 

person, provided the material sought is available for copying at a division office during 

15 By its terms, 8 AAC 45.030 applies to the “division,” which is defined as 

“the division of workers’ compensation within the administrative branch of the 

Department of Labor and Workforce Development.” 8 AAC 45.900(a)(8). 

8 AAC 45.030 was most recently amended in 1983, see Alaska Administrative Code, 

Register 86 (July 1983), long before the Commission’s creation, see ch. 10, § 8, FSSLA 

2005, and is in a part of the Alaska Administrative Code entitled “Compensation, 

Medical Benefits, and Proceedings Before the Alaska Workers’ Compensation Board.” 

See 8 AAC pt. 3, ch. 45 (2011). Alaska Statute 23.30.008(c) allows the Commission to 

promulgate “regulations implementing the commission’s authority and duties under [the 

Alaska Workers’ Compensation Act], including rules of procedure . . . for proceedings 

before the commission.” The Commission has promulgated regulations setting out 

procedural rules in appeals to it, see, e.g., 8 AAC 57.090, so it is not clear why the 

Commission considered itself bound by 8 AAC 45.030 here. 

16 8 AAC 45.030(a). 8 AAC 45.030(a)(2) permits the division to charge for 

duplicating tapes. 

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normal business hours.”17 And 8 AAC 45.030(c), the regulatory subsection M-K Rivers 

cites in its brief, requires an appellant to “pay the cost of preparing the record on appeal” 

and provides that “[t]he division will not certify the administrative record until all costs 

of record preparation have been paid.” 

Although M-K Rivers relies on the part of the regulation about preparing 

the record on appeal, we see no indication that there was any difficulty in preparation of 

the record for appeal. The Board supplied the record to the Commission promptly — the 

Board’s record was filed less than a month after Eder’s notice of appeal — and nothing 

in the record suggests either that Eder was required to pay for preparation of the record 

or that his failure to pay for preparation was in any way connected to the dismissal. And 

if 8 AAC 45.030(c) was the basis for the Commission’s refusal to provide Eder with a 

copy of the record, the Commission’s determination that it was bound by the provision 

related to payment for copying would be inconsistent with its treatment of transcription 

fees. 8 AAC 45.030(c) requires the party requesting a transcript to pay the transcription 

fee, but the Commission’s regulation permits it to waive transcription fees,18 and the 

Commission in fact waived the fee here. Assuming any part of 8 AAC 45.030 can be 

read as prohibiting provision of free copies to an indigent litigant, we fail to see why the 

Commission would feel bound by that part of the regulation when it considered itself 

able to override the same regulation with respect to transcription fees. 

The remainder of the regulation permits the division to charge for copying 

and to refuse to make the copies itself as long as it makes the record available for 

17 8 AAC 45.030(b). 

18 8 AAC 57.090(c)(2). 

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copying at a division office.19 Nothing in the regulatory language prohibits the division 

from waiving copying costs, and the Board’s action here in providing Eder with a CD 

containing part of the record suggests that the division has not interpreted the regulation 

as the Commission did. Furthermore, we note that the Commission itself made a copy 

of the record at no charge to an indigent litigant in an earlier case.20 We thus conclude 

that the regulation does not forbid the Commission from waiving copying costs for an 

indigent litigant,21 and we note we have previously found a denial of due process when 

an agency dismissed an administrative appeal after failing to provide access to the 

administrative record.22 

2.	 The Commission did not make adequate findings to permit 

review of a finding of good cause. 

M-KRivers also argues that theCommissionproperly appliedits regulation 

about dismissal for failure to prosecute an appeal and that dismissal was justified because 

Eder failed to show good cause why his appeal should not be dismissed. M-K Rivers 

19 8 AAC 45.030(a)-(b). 

20 Khan v. Adams & Assocs., AWCAC Dec. No. 057 at 4 (Sept. 27, 2007). 

21 As we noted above, this court provided Eder with a scanned copy of the 

record. In his brief before us, he indicates that he wants a hard copy of the record rather 

than an electronic one. He does not explain why he needs a hard copy of the entire 

record, and we see 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. 

22 Copeland v. Ballard, 210 P.3d 1197, 1204-06 (Alaska 2009) (observing 

that litigants “have a strong interest in accessing the record” because “it is the platform 

upon which they must build their case”); see also Bustamante v. Alaska Workers’ Comp. 

Bd., 59 P.3d 270, 273 (Alaska 2002) (reversing superior court’s decision not to waive 

transcription fees for indigent litigant); Baker v. Univ. of Alaska, 22 P.3d 440, 442-43 

(Alaska 2001) (reaffirming principle “that ‘the size of a party’s bank account’ should not 

‘foreclose [that] party’s opportunity to be heard’ ” (citation omitted) (quoting Peter v. 

Progressive Corp., 986 P.2d 865, 872 (Alaska 1999) (alteration in original)). 

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lists the following factors the Commission has considered in other cases about good 

cause to dismiss an appeal: “whether appellant’s non-compliance was due to 

circumstances beyond his control, whether appellant was somehow prevented from 

complying, and whether appellant made a good-faith effort to comply.” Acknowledging 

that Eder “cited his homelessness and financial difficulties” in his response to the 

Commission’s Order to Show Good Cause, M-K Rivers nonetheless contends that Eder 

made no good faith effort to comply with the Commission’s deadlines pointing to the 

“significant series of delays” and the “haphazard nature of his filings.” 

Assuming the Commission adequately complied with its regulation about 

dismissal,23 the Commission’s sole rationale for dismissing Eder’s appeal was its 

interpretation of 8 AAC 45.030 as prohibiting it (or the Board) “from providing 

documents/evidence at no charge to the appellant.” Aside from remarking about Eder’s 

“unfortunate” circumstances, the Commission made no findings about good cause. It 

made no findings about whether Eder had made a good faith effort to comply with its 

deadlines or whether Eder had not complied due to circumstances beyond his control. 

Unlike the pro se litigant in Khan v. Adams & Associates, Eder timely filed a responsive 

23 A Commission regulation sets out several necessary steps for the 

Commission to take before it may dismiss an appeal for failure to prosecute. 

8 AAC 57.250. “If an appellant fails to comply . . . with an order of the chair or 

commission,” the first step is issuance of “a written notice to the appellant that specifies 

the nature of the failure and states that the appeal may be dismissed . . . if the appellant 

fails to take appropriate corrective action no later than 20 days after receipt of the 

notice.” 8 AAC 57.250(a). Here, the Commission did not wait for Eder to fail to comply 

with its order before it issued the written notice warning of possible dismissal — the 

written notice was part of the order granting Eder’s third request for an extension of time. 

Eder could not have failed to comply with that order before the deadline in it, so it is 

unclear whether the Commission complied with the first step of its regulation. 

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pleading to the Commission’s order to show good cause.24 His request for access to the 

record was clear even if his other pleadings were not, and it was unlikely Eder’s 

circumstances would change while the appeal was pending so that he could pay for either 

copies of the record or travel to Alaska. Additionally, the Commission clerk documented 

a conversation with Eder that indicates he tried to obtain the remainder of the record 

from the Board in December 2014. Because the Commission failed to make findings 

related to good cause, we cannot “fill the gap” by making our own findings.25 

WeacknowledgethatEder’spleadingsaredifficult to decipher,particularly 

when they are handwritten. Nonetheless the pleadings he supplied to the Commission 

indicated that he wanted a copy of the record and was making an effort to comply with 

Commission procedures. If the Commission doubted Eder’s motivation in filing what 

he did or thought it needed more evidence to make findings, it could have held a 

hearing26 or suggested some alternative way for him to comply with the appeals process. 

The Commission’s rationale for failing to provide him with a copy was erroneous, and 

it made no other findings about Eder’s circumstances or lack of good faith. 

V. CONCLUSION 

We REVERSE the Commission’s decision and REMAND for further 

proceedings. 

24 Khan, AWCAC Dec. No. 057 at 2-3. 

25 See Bolieu v. Our Lady of Compassion Care Ctr., 983 P.2d 1270, 1275 

(Alaska 1999) (observing that a remand is needed when the Board fails to make a 

necessary finding). 

26 See Lawson v. State, Workers’ Comp. Div., AWCAC Dec. No. 110 at 4-7 

(May 29, 2009) (describing hearing to ascertain reasons for late filing). 

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