ALASKA WORKERS' COMPENSATION BOARD



ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 115512 Juneau, Alaska 99811-5512

| | | |

|WADE E. WARINER, |) | |

|Employee, |) | |

|Applicant |) |INTERLOCUTORY |

| |) |DECISION AND ORDER |

|v. |) | |

| |) |AWCB Case No. 200522520 |

|CHUGACH SUPPORT SERVICES, INC., |) | |

|Employer, |) |AWCB Decision No. 10-0075 |

| |) | |

|and |) |Filed with AWCB Anchorage, Alaska |

| |) |on April 29, 2010 |

|ZURICH AMERICAN INSURANCE |) | |

|COMPANY And NOVAPRO RISK |) | |

|SOLUTIONS (f/k/a WARD NORTH |) | |

|AMERICA), |) | |

|Insurer/Adjuster, |) | |

|Defendants. |) | |

The Board issued its Interlocutory Decision and Order in this matter, AWCB Decision No. 09-0158, on October 13, 2009 (Wariner I). The order addressed the employer’s March 13, 2009 Petition to compel discovery or, in the alternative, to dismiss the employee’s claim, as well as the employer’s March 13, 2009 Petition for a Continuance of the hearing on the merits of the case scheduled for July 14, 2009. The Board granted reconsideration on the employer’s motion for limited reconsideration of the mental health and employment records releases issue on November 10, 2009 (Decision and Order No. 09-0169) (Wariner II). On March 24, 2010, the Board heard further argument from the parties on the mental health and employment records release issues. The employee appeared in person and represented himself. Attorney Robert Bredesen represented the employer and carrier (“employer”). During the course of this hearing the employee stated he wished to amend his claims to include permanent and total disability (“PTD”), renewed his claim for a second independent medical evaluation (“SIME”), and added affective mood disorder as an injury in this case.

ISSUES

The employer contends the employee should be compelled to sign mental health and employment releases because he suffers from affective mood disorder which is relevant to the employee’s case because those records aid the building of a defense in this case. Further, the employer argues the employee has now amended his claim to include the affective mood disorder as a work injury and has amended his claim to include PTD, which makes the employee’s mental health and employment records clearly relevant to this case. The employee rebuts he did not have any mental health issues prior to this injury and the scope of any mental health release should be limited to a time period of no earlier than two years before the date of injury. The employee contends though he was awarded social security disability (“SSD”) based on affective mood disorder as the primary basis and spondylosis secondarily. He argued further he was unaware of the distinction made by the Social Security Administration on this issue when he stated in the first hearing that his SSD was based on his work injury.

1. Should the employee be compelled to sign a mental health release?

2. Should the employee be compelled to sign an employment records release from 1995 to the present?

FINDINGS OF FACT

A review of the entire administrative record establishes the following facts by a preponderance of the evidence:

1. The summary of evidence in Wariner I, which tracks the medical treatment history and procedural history of this case, is hereby incorporated.[1]

2. The employee was injured in the course and scope of his employment on July 15, 2005, when he fell onto a piece of pipe and twisted his back while working in King Salmon.[2]

3. The employee made a passing comment regarding depression in the December 12, 2008 prehearing conference.[3] At that time the employee had no intention of amending his claim to include depression.[4]

4. The employee amended his claim to include affective mood disorder and PTD at the hearing held on March 24, 2010.[5]

5. The employee was diagnosed with affective disorders (major depression vs. atypical bipolar disorder) on November 21, 2006, by Wandall Winn, MD, in a Social Security Disability (“SSD”) evaluation.[6] On November 2, 2006, David Holladay, MD, noted the employee’s “most likely scenario…has been a history of hypomania that has progressed to a bipolar disorder of the depressed or mixed type. Exacerbating factors clearly have been his long history of exposure to solvents or other medical problems.”[7] Dr. Holladay notes the employee has no psychiatric history and no indications of malingering.[8]

6. Social Security Form 831 shows the employee’s primary diagnosis for the purpose of employee’s SSD as Affective/Mood Disorders.[9] The secondary diagnosis is disorders of back (discogenic and degenerative).[10]

7. The employee is not represented by counsel.[11]

8. In Wariner I the Board granted the employee a protective order for mental health releases and found the employee had made no claim for mental health benefits.

PRINCIPLES OF LAW

The Alaska Supreme Court encourages “liberal and wide-ranging discovery under the Rules of Civil Procedure.”[12] If it is shown informal means of developing evidence have failed, “we will consider the relevance of the requested information and the method of discovery to be authorized.”[13] If a party unreasonably refuses to provide information, AS 23.30.135 and AS 23.30.108(c) grants broad discretionary authority to make orders that will assure that parties obtain the relevant evidence necessary to litigate or resolve their claims.[14]

As an administrative agency, we have only the powers expressly granted by statute and those necessarily incident to exercise our express powers.[15] Accordingly, the first step in our analysis is to decide whether we have authority to order employee to release all information within the terms of the employer’s releases. We have long interpreted AS 23.30.005(h)[16] as empowering us to order a party to release and produce records “that relate to questions in dispute.”[17] We derive additional authority to order a party to release information from our broad powers to “best ascertain” the parties’ rights.[18]

In 1982, the legislature amended the Act to provide employers with a simple, expedient mechanism to secure relevant medical evidence; it expressly imposed a statutory duty on employees to release relevant medical information.[19] This specific, statutory authority allows our Board Designee and the Board to order parties to sign releases and produce evidence. The employee must release all evidence “relative” to the claim pursuant to AS 23.30.107(a), which provides:

Upon request, an employee shall provide written authority to the employer, carrier, rehabilitation specialist, or reemployment benefits administrator to obtain medical and rehabilitation information relative to the employee’s injury. The request must include notice of the employee’s right to file a petition for a protective order with the board and must be served by certified mail to the employee’s address on the notice of injury or by hand delivery to the employee. This subsection may not be construed to authorize an employer, carrier, rehabilitation specialist, or reemployment benefits administrator to request medical or other information that is not applicable to the employee’s injury (emphasis added).

Thus, AS 23.30.107 provides statutory authority for an employer to discover specified information. A separate statute specifically empowers the Board’s Designee to rule on disputes over the propriety of any given release. In general, in respect to objections to requests for “release of information,” AS 23.30.108 states:

(a) If an employee objects to a request for written authority under AS 23.30.107, the employee must file a petition with the board seeking a protective order within 14 days after service of the request. If the employee fails to file a petition and fails to deliver the written authority as required by AS 23.30.107 within 14 days after service of the request, the employee’s rights to benefits under this chapter are suspended until the written authority is delivered.

(b) If a petition seeking a protective order is filed, the board shall set a prehearing within 21 days after the filing date of the petition. At a prehearing conducted by the board’s designee, the board’s designee has the authority to resolve disputes concerning the written authority. If the board or the board’s designee orders delivery of the written authority and if the employee refuses to deliver it within 10 days after being ordered to do so, the employee’s rights to benefits under this chapter are suspended until the written authority is delivered. During any period of suspension under this subsection, the employee’s benefits under this chapter are forfeited unless the board, or the court determining an action brought for the recovery of damages and under this chapter, determines that good cause existed for the refusal to provide the written authority.

In respect to enforcing the claimant’s obligation to provide written “release of information” pursuant to §107, AS 23.30.108(c) provides:

At a prehearing on discovery matters conducted by the board’s designee, the board’s designee shall direct parties to sign releases or produce documents, or both, if the parties present releases or documents that are likely to lead to admissible evidence relative to an employee’s injury. If a party refuses to comply with an order by the board’s designee or the board concerning discovery matters, the board may impose appropriate sanctions in addition to any forfeiture of benefits, including dismissing the party’s claim, petition, or defense. If a discovery dispute comes before the board for review of a determination by the board’s designee, the board may not consider any evidence or argument that was not presented to the board’s designee, but shall determine the issue solely on the basis of the written record. The decision by the board on a discovery dispute shall be made within 30 days. The board shall uphold the designee’s decision except when the board’s designee’s determination is an abuse of discretion (emphasis added).

AS 23.30.135(a) provides in part:

In making an investigation or inquiry or conducting a hearing the board is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided in this chapter. The board may make its investigation or inquiry or conduct its hearing in the manner by which it may best ascertain the rights of the parties. . . .

AS 23.30.155(h) provides in part:

The board may upon its own initiative at any time in a case in which payments are being made with or without an award, where right to compensation is controverted . . . make the investigations, cause the medical examinations to be made, or hold the hearings, and take the further action which it considers will properly protect the rights of all parties.

A central question in most workers’ compensation proceedings is the cause, nature, and/or extent of employee’s injury, need for medical care, impairment, and disability. In the typical case, medical records and doctors’ reports are the most relevant and probative evidence on these issues. To ensure the Board and parties have ready access to such evidence, the legislature abrogated the physician-patient privilege as to “facts relative to the injury or claim” in a workers’ compensation proceeding.[20]

We have not interpreted the “relative to the employee’s injury” standard under §107(a) as imposing a substantial burden on either employees or employers. We previously stated to be discoverable under §107(a), information need only have “some relationship or connection to the injury.”[21]

Our regulations provide employee with a quick and summary procedure to test whether information sought to be released is discoverable or warrants protection from disclosure. Our regulation 8 AAC 45.095 provides:

a) An employee who, having been properly served with a request for release of information, feels that the information requested is not relevant to the injury must, within 14 days after service of the request, petition for a prehearing under 8 AAC 45.065.

b) If after a prehearing the board determines that information sought from the employee is not relevant to the injury that is the subject of the claim, a protective order will be issued.

c) If after a prehearing an order to release information is issued and an employee refuses to sign a release, the board will, in its discretion, limit the issues at the hearing on the claim to the propriety of the employee’s refusal. If after the hearing the board finds that the employee’s refusal to sign the requested release was unreasonable, the board will, in its discretion, refuse to order or award compensation until employee has signed the release.

We are mindful our jurisdiction is much narrower than that of courts. However, the scope of evidence we may admit and consider in deciding issues is broader.[22] Information which would be inadmissible at a civil trial may nonetheless be discoverable in a worker’s compensation claim if it is reasonably calculated to lead to admissible evidence.[23] Under our relaxed evidence rules, discovery should be at least as liberal as in a civil action and the Board’s relevancy standards should be at least as broad.[24] To be admissible at hearing, evidence must be “relevant.”[25] However, we find a party seeking to discover information need only show the information appears reasonably calculated to lead to the discovery of evidence, which will be admissible later at hearing.[26]

The central question in determining if we have the power to compel the signing of a particular release is whether the information being sought is reasonably calculated to lead to the discovery of facts “relevant” to employee’s injury or a question in dispute. The burden of demonstrating the relevancy of information being sought rests with the proponent of the release.

The legal concept of “relevancy” describes a logical relationship between a fact and a question that must be decided in a case. The relevancy of a fact is its tendency to establish a material proposition.[27] The Commentary to Alaska Evidence Rule 401 explains:

Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case. Does the item of evidence tend to prove the matter sought to be proved? Whether the relationship exists depends upon principles evolved by experience or science, applied logically to the situation at hand (citations omitted).

To render evidence admissible under the Alaska Evidence Rules, the relevancy relationship need not be strong: “[R]elevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”[28]

The first step in determining whether information sought is relevant is to analyze what matters are “at issue” or in dispute in the case. We look primarily to the parties’ pleadings and the prehearing conference summaries to ascertain the specific benefits employee is claiming, and the employers’ defenses to these claims. Next, we analyze the elements employee must prove to establish his entitlement to each benefit claimed and the elements of employers’ affirmative defenses, to determine what propositions are properly the subjects of proof or refutation in the case. It is also necessary to review available evidence to determine if there are specific material facts in dispute and whether the information being sought may be relevant to a potential witness’ cross examination.[29]

We next must decide whether the information employers seek is relevant for discovery purposes, i.e., whether it is reasonably “calculated” to lead to facts that will have any tendency to make a question at issue in the case more or less likely, or support a defense.[30] In interpreting the meaning of “relevant” in the context of discovery, we have previously stated:

We believe that the use of the word ‘relevant’ in this context should not be construed as imposing a burden on the party seeking the information to prove beforehand, that the information sought in its investigation of a claim is relevant evidence which meets the test of admissibility in court. In many cases the party seeking information has no way of knowing what the evidence will be, until an opportunity to review it has been provided.[31]

We conclude, based on the policy favoring liberal discovery, “calculated” to “lead to admissible evidence” means more than a mere possibility, but not necessarily a probability, that the information sought by the release will lead to admissible evidence.[32] For a discovery request to be “reasonably calculated,” it must be based on a deliberate and purposeful design to lead to admissible evidence, and that design must be both reasonable and articulable. The proponent of a release must be able to articulate a reasonable nexus between the information sought and evidence relevant to a material issue in the case.[33] To be “reasonably calculated” to lead to admissible evidence, both the scope of information within the release terms and the time periods it covers must be reasonable.[34] The nature of employee’s injury, the evidence thus far developed, and the specific disputed issues in the case all combine to determine whether the scope of information sought and period of time covered by a release are “reasonable.”[35]

Employee’s statutory duty to sign releases pursuant to AS 23.30.107(a) applies at all phases of a workers’ compensation claim. We take administrative notice in some cases it is difficult to see how medical records other than treatment records for the job injury could be relevant to the employee’s injury, reasonably necessary to properly administer the claim, or calculated to lead to admissible evidence. But in contested PTD cases with a myriad of claimed bodily symptoms, information that may have a “historical or causal connection to the injuries” is generally discoverable.[36] For example, in Smith v. Cal Worthington Ford, Inc.,[37] the Board found the facts presented a reasonable basis to believe the employee’s work-related knee injury may have been related to a prior knee injury. Accordingly, the Board found medical records relating to knee treatments going back two years prior to the first injury were reasonably calculated to lead to admissible evidence. Additionally, because the employee claimed his industrial knee injury caused a compensable back condition, the Board also ordered the employee to release medical records relating to his back, beginning two years prior to his work-related knee injury.

In our experience, records of medical treatment to the body part or organic system employee alleges was injured in the course and scope of employment, covering a period of two years prior to the date of injury, are sufficiently likely to lead to admissible evidence discoverable in most contested cases. However, the scope of releases the Act requires employee to sign can only be determined by a review of the unique facts presented, and specific benefits claimed in each case. We have consistently approved significantly broader medical releases where mental injury was alleged, or where there was a reasonable indication a physical injury may have a psychological component (such as chronic pain syndrome, or a somatoform or conversion disorder).[38]

In summary, we know of no practical means to limit fair and liberal discovery to only “relevant” evidence.[39] We conclude the compelling state interests in prompt, fair, and equitable disposition of claims, in ensuring the integrity of the workers’ compensation system, and in providing employers with due process of law, necessarily requires employers be permitted to secure private and sometimes “irrelevant” information that is reasonably calculated to lead to discovery of relevant, admissible evidence. We conclude, however, employee maintains a legitimate, but qualified, expectation of privacy in irrelevant information that may be revealed to employer in the course of lawful discovery. We conclude employer may know, possess, and disclose such private information only for the purposes of ascertaining whether it is relevant evidence. Apart from use reasonably related to legitimate defense of employee’s claim, such private information must be held in confidence by employer, its insurer, their agents, attorneys, and consulting experts.

It is foreseeable reasonable discovery may entail release of private information, ultimately irrelevant to the issues in the case, to another party. To protect employee’s legitimate privacy interests, it is incumbent on the Board to ensure discovery takes place in the least intrusive manner possible. Consistent with due process, the parties’ right to have the record in our decision reviewed by the Alaska Worker’s Compensation Appeals Commission or the courts, and absent statutory or regulatory authority, we conclude we cannot remove sensitive or embarrassing documents filed in our case record even if we believe they are irrelevant.[40] The protection of the employee’s right to privacy in irrelevant medical records is made problematic because pursuant to AS 23.30.095 (h) and 8 AAC 45.052, parties are required to file medical records “relating to the proceedings” or “which are or may be relevant.” The rules are not as clear in respect to non-medical documents. Accordingly, we direct the employer not to file irrelevant, non-medical documents in our records. We conclude the confidentiality protections in AS 23.30.107(b) are sufficient to protect employee’s rights to privacy in irrelevant medical treatment records in all but extraordinary situations.

Nonetheless, we recognize every potential disclosure of extraordinarily sensitive medical records, such as psychological and psychiatric records for example, outside of what is necessary for medical treatment or to prove or disprove a material issue in dispute, incrementally and impermissibly intrudes on employee’s constitutional right to privacy in those records.[41] Accordingly, we direct both employers not to file clearly irrelevant, “highly sensitive” medical documents in our record. We again conclude the confidentiality protections in AS 23.30.107(b) are sufficient to protect employee’s rights to privacy in irrelevant medical treatment records in all but extraordinary situations.

ANALYSIS

The employer contends the employee should be compelled to sign mental health and employment releases because he suffers from affective mood disorder which is relevant to the employee’s case because those records aid the building of a defense in this case. Further, the employer argues the employee has now amended his claim to include the affective mood disorder as a work injury and has amended his claim to include PTD, which makes the employee’s mental health and employment records clearly relevant to this case. The employee rebuts he did not have any mental health issues prior to this injury and the scope of any mental health release should be limited to a time period of no earlier than two years before the date of injury. The employee contends though he was awarded social security disability (“SSD”) based on affective mood disorder as the primary basis and spondylosis secondarily. He argued further he was unaware of the distinction made by the Social Security Administration on this issue when he stated in the first hearing that his SSD was based on his work injury.

1. Should employee be compelled to sign a mental health release?

2. Should employee be compelled to sign an employment records release from 1995 to the present?

The issues in dispute were increased by employee in the March 24, 2010 hearing to include PTD and the mental injury Affective/Mood disorder. By making his mental injury an issue, employee has now brought mental health into the realm of relevance in this case. Employee’s mental health treatment records, if any, are now relevant and likely to lead to discoverable evidence. Since it is Board practice, as discussed above, to allow releases to go back two years prior to the first known medical record regarding any injured body part, the mental health releases in this case will be permitted to go back to 1969. The protections of employee’s rights to privacy are adequately protected by the Act’s requirements regarding confidentiality of those medical records, and discovery of those records is required to protect the employer’s due process rights and the Act’s requirements for a fair and efficient discovery process.

Finally, employee did not oppose the employer’s request for an employment records release that goes back to ten years before the date of injury (1995). As employee has amended his claim to include PTD his employment history is clearly relevant to determine if he is able to perform any job he has held in the last ten years.

CONCLUSIONS OF LAW

The employer is entitled to a mental health release now that employee has amended his claim to include a mental injury. The employer is also entitled to an employment records release since employee is now claiming PTD as a benefit.

ORDER

1. Employee is ordered to sign the proposed mental health releases with the appropriate limitation of 1969 to present.

2. Employee is ordered to sign an employment records release for records from 1995 to present.

3. A prehearing conference is ordered to address employee’s continuing request for an SIME.

Dated at Anchorage, Alaska on April ____, 2010.

ALASKA WORKERS' COMPENSATION BOARD

Laura Hutto de Mander, Designated Chair

Robert Weel, Member

Patricia Vollendorf, Member

EXTRAORDINARY REVIEW

Within 10 days of after the date of service of the Board’s decision and order from which review is sought and before the filing of a timely request for reconsideration of the Board decision and order from which review is sought, a party may file a motion for extraordinary review seeking review of an interlocutory or other non-final Board decision or order with the Alaska Workers’ Compensation Appeals Commission under 8 AAC 57.072 and 8 AAC 57.074.

RECONSIDERATION

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

MODIFICATION

Within one year after the rejection of a claim, or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200, or 23.30.215, a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

CERTIFICATION

I hereby certify the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of WADE E. WARINER employee/applicant; v. CHUGACH SUPPORT SERVICES, INC., employer; ZURICH AMERICAN INSURANCE COMPANY AND NOVA PRO RISK SOLUTIONS (f/k/a WARD NORTH AMERICA), insurer/defendants; Case No. 200522520; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, on April 29th, 2010.

Cynthia A. Stewart, Office Assistant I

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[1] AWCB Dec. No. 09-0158 (Oct. 13, 2009).

[2] Report of Injury, 7/19/05.

[3] 1/2/09 transmittal letter from R. Bredesen to employee. Testimony of employee at 7/14/09 hearing.

[4] Wariner I.

[5] Employee’s testimony, 3/24/10 hearing.

[6] Psychiatric Review Technique, W. Winn, 11/21/06.

[7] Outpatient Psychiatric Evaluation, D. Holladay, 11/2/06.

[8] Id.

[9] Disability Determination and Transmittal Form for Wade E. Wariner.

[10] Id.

[11] Board record.

[12] Schwab v. Hooper Elec., AWCB Decision No. 87-0322 at 4, n. 2 (Dec. 11, 1987); citing United Services Automobile Ass’n v. Werley, 526 P.2d 28, 31 (Alaska 1974); see also, Venables v. Alaska Builders Cache, AWCB Decision No. 94-0115 (May 12, 1994).

[13] Brinkley v. Kiewit-Groves, AWCB Decision No. 86-0179 at 5 (July 22, 1986).

[14] Bathony v. State of Alaska, D.E.C., AWCB Decision No. 98-0053 (Mar. 18, 1998).

[15]Blanas v. Brower Co., 938 P.2d 1056, 1061 (Alaska 1997) (quoting Greater Anchorage Area Borough v. City of Anchorage, 504 P.2d 1027, 1033 n. 19 (Alaska 1972)).

[16]AS 23.30.005(h) provides in pertinent part:

Process and procedure under this chapter shall be as summary and simple as possible. The board or a member of it may for the purposes of this chapter subpoena witnesses, administer or cause to be administered oaths, and may examine or cause to have examined the parts of the books and records of the parties to a proceeding that relate to questions in dispute (emphasis added).

[17]Schwab v. Hooper Electric, AWCB Decision No. 87-322 (December 11, 1987).

[18]AS 23.30.135(a) and AS 23.30.155(h). See also McDonald v. Municipality of Anchorage, AWCB Decision No. 94-0090 (April 15, 1994).

[19]AS 23.30.107(a).

[20]AS 23.30.095(e) provides in pertinent part:

Facts relative to the injury or claim communicated to or otherwise learned by a physician who may have attended or examined the employee, or who may have been present at the examination are not privileged, either in the hearings provided in this chapter or an action to recover damages against an employer who is subject to the compensation provisions of this chapter (emphasis added.)

[21]Cooper v. Boatel, Inc., AWCB Decision No. 87-0108 (May 4, 1987).

[22]We operate under relaxed evidence and procedure rules. AS 23.30.135(a) provides in pertinent part:

In making an investigation or inquiry or conducting a hearing the board is not bound by common law or statutory rules of evidence or by technical or formal rules of procedure, except as provided by this chapter. The board may make its investigation or inquiry or conduct its hearing in the manner by which it may best ascertain the rights of the parties. . . .

[23]Cooper, supra.

[24]Schwab v. Hooper Electric, AWCB Decision No. 87-322 (December 11, 1987).

[25]8 AAC 45.120(e) provides:

Technical rules relating to evidence and witnesses do not apply in board proceedings, except as provided in this chapter. Any relevant evidence is admissible if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but it is not sufficient in itself to support a finding of fact unless it would be admissible over objection in civil actions. The rules of privilege apply to the same extent as in civil actions. Irrelevant or unduly repetitious evidence may be excluded on those grounds (emphasis added.)

See also AS 44.62.460 (d). The “relevant” and “reliable” admission standard gives the Board discretion to exclude untrustworthy evidence. See Whaley v. Alaska Workers Compensation Board, 648 P.2d 955, 958 (Alaska 1982). However, we find the trustworthiness of relevant evidence is an issue properly addressed at the time of its admission at hearing, and does not impose an additional requirement for discovering information.

[26]Smart v. Aleutian Constructors, AWCB Decision No. 98-0289 (November 23, 1998).

[27]Edward W. Cleary, McCormick’s Handbook of the Law of Evidence, (2nd Edition) 1972, sec. 185 at 436.

[28]Alaska Evidence Rule 401.

[29]Weseman v. Dairy Queen of Anchorage, Inc., AWCB Decision No. 90-0027 (February 23, 1990).

[30]Information is relevant for discovery purposes if it is reasonably “calculated” to lead to facts that are relevant for evidentiary purposes.

[31]Schwab v. Hooper Electric, AWCB Decision No. 87-0322 (December 11, 1987) (quoting Green v. Kake Tribal Corp., AWCB Decision No. 87-0249 (July 6, 1987)).

[32] Black’s Law Dictionary, 3rd Edition (1969) at 225 defines “calculated” as “an act which may produce a certain effect, whether intended or not; fitted adapted or suited. . . . Likely or intended. . . .” The American Heritage Dictionary of the English Language, 3rd Edition (1992) defines “calculated” as: “1. Determined by mathematical calculation. 2. Undertaken after careful estimation of the likely outcome. 3. Made or planned to accomplish a certain purpose; deliberate. 4. Likely; apt.”

[33]In the Matter of Mendel, 897 P.2d 68, 93 (Alaska 1995).

[34]In Russell v. University of Alaska, AWCB Decision No. 88-0241 (September 16, 1988), affirmed as modified, Russell v. University of Alaska, 3AN-88-10313 CI (October 5, 1990), the employee voluntarily signed a general medical release going back two years prior to the alleged carbon monoxide exposure injury. The court reversed the Board’s order compelling the employee to execute a general medical release unlimited in time. Instead, the court ordered the employee to sign a release unlimited in time, but limited to medical records relating to carbon monoxide exposure, the physical complaints the employee attributed to his exposure, and specific mental disorders that may cause similar symptoms.

[35]Cole v. Anchorage School District, AWCB Decision No. 93-0311 (February 9, 1993).

[36]Arctic Motor Freight, Inc. v. Stover, 471 P.2d 1006, 1009 (Alaska 1977) (deciding the scope of plaintiff’s implied waiver of the physician-patient privilege by putting his bodily condition at issue in a civil action).

[37]AWCB Decision No. 94-0091 (April 15, 1994).

[38]See for example Cole, supra (ordering release of twenty years of mental health treatment records for specific psychiatric disorders in a stress claim); Tschantz v. Anchorage School District, AWCB Decision No. 90-0244 (October 5, 1990) (ordering release of all medical records relating to back or neck treatment and ten years of mental health treatment records in a spinal injury claim with an indication of chronic pain syndrome).

[39]Smiley v. Phoenix Logging Co., AWCB Decision No. 94-0283 (May 11, 1994).

[40]Our cases have frequently stated, “irrelevant information can be excluded from our record” (see for example Cooper; McDonald; Raymond, supra). Unquestionably we may exclude irrelevant evidence from our hearing record, but the “case record” is more comprehensive than the hearing record and includes all filed documents and information. Absent specific authority or an established practice and procedure of excluding filed documents from our case record, this protection for sensitive, but irrelevant information, rings hollow.

[41]Disclosure of the mere fact a person has visited a psychiatrist, psychologist or a physician specializing in treating sexual problems or venereal disease is sensitive information that may cause particular embarrassment or opprobrium. Falcon, 570 P.2d at 480. See also Davic v. Seastar Stevedore, AWCB Decision No. 88-0361 (December 29, 1988).

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