Burke v. Houston Nana, L.L.C.

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 28.30.041(c) required Burke to request an evaluation within…