ALASKA WORKERS' COMPENSATION BOARD



ALASKA WORKERS' COMPENSATION BOARD

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

| |) | |

|ALICE TURPIN, |) | |

|Employee, |) | |

|Applicant |) |INTERLOCUTORY |

|v. |) |DECISION AND ORDER |

|ALASKA GENERAL SEAFOODS, |) | |

|Employer, |) |AWCB Case No. 200411354 |

|and |) | |

|ZURICH AMERICAN INS CO, |) |AWCB Decision No. 09-0054 |

|Insurer, |) | |

|Defendants. |) |Filed with AWCB Anchorage, Alaska |

| | |on March 18, 2009 |

The Alaska Workers’ Compensation Board (Board) heard the employer’s petition to dismiss and the employee’s petition for an SIME on January 22, 2009 in Anchorage, Alaska. Attorney Randle Weddle represented the employer and insurer (“employer”). The employee represented herself (“employee”). We closed the record at the conclusion of the hearing. The record was reopened on February 5, 2009, when the Board met for further deliberations and closed on February 11, 2009.

ISSUES

1. Is the employee’s claim barred pursuant to AS 23.30.110(c)?

2. Is the employee entitled to an SIME under AS 23.30.095 or AS 23.30.110(g)?

SUMMARY OF EVIDENCE

MEDICAL EVIDENCE

The employee was injured on July 8, 2004, while working for the employer as a quality control attendant at a cannery in Naknek, Alaska.[1] The employee stated that her boot was caught in a rotary blade, flipped up, slamming her right tibia against the underside of a steel table.[2] The employee sought medical care that day at Camai Community Clinic.[3] Michael Yager, PAC, diagnosed a contusion on her right leg with mild to moderate pain and mild swelling.[4] Mr. Yager prescribed ibuprofen 800mg and hydrocodone/APAP 5/500 as needed, along with rest, ice, and compression.[5] Mr. Yager also placed the employee on modified work for one day.[6] The employee finished out the season working for the employer for approximately two more weeks; she described this as she “hobbled through it.”[7]

On August 17, 2004, the employee followed up with Marlon Flechtall, MD, in Junction City, Oregon, where the employee resides.[8] The employee reported to Dr. Flechtall that she continued to have pain six weeks after the injury.[9] The doctor noted a contusion on the anterior aspect of the tibia near the knee joint that had continued swelling and tenderness.[10] Dr. Flechtall ordered x-rays.[11] On October 22, 2004, the employee saw Dr. Flechtall again for continued pain in the right leg.[12] At this visit the doctor noted the August x-rays were normal and referred the employee to an orthopedic surgeon.[13] On October 9, 2004, Dr. Flechtall referred the employee to physical therapy.[14]

The patient saw Lisa Lamoreaux, MD, on November 9, 2004, by referral from Dr. Flechtall, for continuing right knee and leg pain.[15] Dr. Lamoreaux opined the employee had a deep bone contusion, significant pes bursitis, and patellar tendinosis; she ordered an MRI[16] and physical therapy, noting the employee should have seen relief more than three months after the injury.[17] The MRI findings revealed mild medial degenerative osteoarthritic changes with no discrete meniscal or cartilage tear.[18] The patient attended physical therapy with therapist Lonnie Ward from December 2, 2004 through January 14, 2005, with no improvement in symptoms.[19] On January 18, 2005, Dr. Lamoreaux noted the employee had seen no improvement in her knee and leg pain despite six weeks of physical therapy, use of anti-inflammatories, and taping.[20] Dr. Lamoreaux recommended arthroscopy with possible patellar chondroplasty if indicated and meniscectomy if a there was a tear.[21] On February 8, 2005, Dr. Lamoreaux took the employee off work until two weeks after the surgery, which was scheduled for February 17, 2005.[22]

Dr. Lamoreaux performed right knee arthroscopy, chondroplasty patella, and media femoral condyle surgery on the employee on March 3, 2005.[23] Dr. Lamoreaux found no gross effusion or synovitis within the knee, the patellofemoral compartment showed chondromalacia of the lateral facet of the patella with cracking and fissuring, there was chondromalacia smaller than

one centimeter on the medial femoral condyle, and no tear in the meniscus, ACL or PCL.[24] Dr. Lamoreaux debrided the two areas of chondromalacia.[25] The employee returned to physical therapy after surgery for an additional five weeks,[26] and attended from March 15, 2005 to March 17, 2005.[27] The employee saw Dr. Lamoreaux five weeks post operative for swelling and tenderness in the right leg;[28] and was diagnosed with a deep vein thrombosis (DVT) in her right peroneal vein.[29] The employee returned to physical therapy on April 15, 2005 through June 14, 2005.[30] On June 20, 2005, Dr. Lamoreaux noted the employee continued to have pain “out of proportion” to objective findings.[31] Dr. Lamoreaux indicated the employee was likely going to have to learn to live with the pain, would have permanent restrictions on heavy lifting, and limited activity.[32] Dr. Lamoreaux placed the employee on work restrictions, prescribed one more month of physical therapy, and anticipated the employee would reach maximum medical improvement in one month.[33] The employee attended physical therapy from June 23, 2005 through August 8, 2005, when she was discharged.[34] Dr. Lamoreaux determined the employee was medically stationary as of August 8, 2005.[35] On August 8, 2005, the employee saw Dr. Lamoreaux for continued right knee “constant, nagging pain” affecting her work capacity and functional lifestyle.[36] On August 8, 2005, Dr. Lamoreaux responded to a letter from the employer indicating the employee was medically stable (according to the Alaska definition) on August 8, 2005, she continued to have pain in the 4 to 7 out of 10 range, she continued to have an altered gait, altered lifestyle, and an inability to return to the type of work she was performing at the time of injury.[37] She released the employee to return to light duty including her work as a teacher’s assistant.[38] Dr. Lamoreaux gave the employee a permanent partial impairment rating of 3% of the whole person according the AMA Guides, 4th Edition.[39]

On December 5, 2005, the employee consulted with Robert DuPriest, Jr., MD, regarding possible long term complications from her post operative DVT and medications.[40] The employee continued to have right knee tenderness, and shared she was told total knee replacement would likely be needed in the future.[41] Dr. DuPriest explained to the employee that having had a DVT once puts her at greater risk for a repeat DVT, which was further complicated by her family history.[42] Dr. DuPriest recommended the employee seek a second opinion from an orthopedist regarding further treatment for her knee pain.[43]

At the employer’s request, on December 15, 2005, the employee was seen by Anthony Woodward, MD, for an employer medical evaluation (EME).[44] Dr. Woodward reported that his examination of the patient revealed a normal gait.[45] Dr. Woodward said he had not been provided medical records from Dr. Lamoreaux, but opined that the employee had a contusion on her right knee which was resolved, the employee was medically stable, able to return to work without restriction, and had no PPI.[46] After reviewing the formerly missing medical records, Dr. Woodward opined the employee had a contusion on the proximal shin which was resolved, chondromalacia of the right patella, age-dependent chondromalacia of the medial femoral condyle, and chronic pain complaints in the right knee, all unrelated to the work injury.[47]

A May 11, 2006 x-ray showed minimal degenerative changes of the employee’s “medial tibial spine,” unchanged from the previous exam.[48] On May 26, 2006, a new MRI of the right knee showed minimal intraarticular fluid and mild to moderate chondromalacia patella involving lateral facet and the femoral trochlear groove, slightly progressed compared to a previous study.[49]

The employee returned to Dr. Lamoreaux on May 30, 2006, complaining she could no longer tolerate the pain.[50] Dr. Lamoreaux noted that the employee was having trouble walking, had a limp and dragged her leg almost to the point of having a drop foot.[51] The employee reported the pain radiated down her entire right leg, and rated it at a 7 to 8 out of 10.[52] The employee also reported numbness in her right leg from the hip down.[53] Dr. Lamoreaux also observed weakness in the right leg and recommended the employee see a neurologist for evaluation for radiculopathy, and ordered an MRI of the lumbar spine.[54] Dr. Lamoreaux thought the limping caused by the employee’s right knee pain may have aggravated whatever was causing her radicular symptoms.[55]

On June 6, 2006, the employee returned to Dr. Flechtall who also noted the employee’s altered gait and numbness in the right leg.[56] Dr. Flechtall recommended an MRI of the hip and back, as well as a consultation with Dr. Muller.[57] On June 20, 2006, the employee returned to Dr. Lamoreaux complaining of radicular symptoms, right-sided low back pain, buttock pain, lateral thigh pain, radiation to the knee, all in addition to her previous hip and knee pain.[58] Dr.

Lamoreaux noted the employee could not sit.[59] The MRI showed a “very mild” L5-S1 bulge with no obvious stenosis.[60] Dr. Lamoreaux referred the employee for an epidural injection and consultation with Dr. Kitchel.[61] Dr. Lamoreaux expressed no opinion about whether the employee’s gait could have caused the back pain and radiculopathy.[62]

On July 5, 2006, the employee was examined by David Lippincott, MD, a neurologist, on referral from Dr. Lamoreaux, for radiating pain and numbness from the right buttock down the leg.[63] Dr. Lippincott noted the following in the employee’s history: numbness in right leg from April 2006, achy low back pain, escalating right buttock and hip pain, pain in the right leg, persistent knee and lower leg pain which impairs the gait, unable to fully bear weight on the right leg.[64] Dr. Lippincott opined the employee had persistent right knee pain with radiation down to the tibia related to her work injury, and radiating pain and numbness from the right buttock down the anterolateral right leg, best described as being in the L5 rather than S1 distribution with some overlap, related to sciatic nerve irritation and a right piriformis/sacroiliac dysfunction accounting for right hip burisitis, all related to the work injury and compensating for the knee injury.[65] Dr. Lippincott further opined the biomechanical compromise made to accommodate the knee pain possibly lead to peroneal nerve irritation/injury and possibly degenerative disc disease.[66] Dr. Lippincott prescribed physical therapy focused on the sacral piriformis hip biomechanical dysfunction and EMG/NCV[67] studies.[68]

On July 28, 2006, the employee saw Dr. Flechtall complaining of continued right knee and leg pain, as well as pain in the hip and buttocks.[69] He noted the employee had not been to a back specialist because of the disagreement with the insurance companies.[70] Dr. Flechtall diagnosed regional pain disorder.[71]

On August 23, 2006, the employer sought an additional EME opinion from Dr. Woodward, regarding whether the employee’s job as a special education teacher was a substantial factor in causing, aggravating, or accelerating any need for treatment of the employee’s right leg and hip/buttock pain. [72] Dr. Woodward opined there were no records before him that indicated the employee’s work as a special education teacher in any way contributed to her symptoms.[73]

On January 5, 2007, the employee returned to Dr. Lippincott for follow up.[74] The employee continued to complain of right leg pain, right hip and buttock pain, and intermittent numbness and tingling in the peripatellar area.[75] Dr. Lippincott indicated physical therapy was not successful so he referred the employee to pool therapy, which was beneficial.[76] The employee was gaining endurance and modest pain control with the use of a knee brace.[77] Dr. Lippincott diagnosed chronic right leg pain because of the work injury, and chronic right sacroilitis and piriformis syndrome “compensatory” and related to biomechanical compromise in the right leg.[78] Dr. Lippincott prescribed continued pool therapy, continued pain medication, and EMG and NCV studies of the right leg.[79] This is the most recent medical record contained in the administrative record.

PROCEDURAL HISTORY

The employee filed her Report of Occupational Injury or Illness (ROI) on July 8, 2004, the same day the work injury occurred.[80] The employer paid compensation to the employee as follows: TTD from February 8, 2005, the date Dr. Lamoreaux took the employee off work prior to surgery, until August 8, 2005, the date Dr. Lamoreaux declared the employee medically stable.[81] The employer also paid the employee three percent PPI, which was the rating assigned by Dr. Lamoreaux.[82]

On August 28, 2005, the employer requested that the employee receive an eligibility evaluation for reemployment benefits.[83] Janice Rubin performed the evaluation.[84] Ms. Rubin requested several extensions of time to file her report due to a lack of response from Dr. Lamoreaux regarding the employee’s ability to do jobs she had held in the past.[85] Ms. Rubin finally submitted an incomplete report on November 18, 2005, without Dr. Lamoreaux’s response to the SCODROT descriptions.[86] On December 12, 2005, Ms. Rubin filed her final report with a statement that she had been unable to contact the employee for two months.[87] The employer controverted AS 23.30.041(k) benefits after December 20, 2005, pursuant to

AS 23.30.041(n)(1)(D), asserting the employee unreasonably failed to maintain contact with the vocational rehabilitation specialist.[88]

On August 7, 2006, the employee filed a Workers’ Compensation Claim (WCC) for continuing TTD; additional PPI, including an additional rating; medical treatment continuing and unpaid

bills; interest; and an SIME. [89] On August 31, 2006, the employer controverted the following benefits: TTD after August 8, 2005, based upon Dr. Lamoreaux’s statement of medical stability on that date; PPI above 3%, based on Dr. Lamoreaux’s rating; medical and related transportation costs related to the right knee contusion, based on the EME opinion that the employee had only received a contusion to her right shin which was resolved and Dr. Lamoreaux’s opinion that no further treatment was necessary; medical and related transportation costs relating to hip, back and leg pain associated with alleged altered gait, based on the EME opinion that the employee had only received a contusion to her right shin, which was resolved, and Dr. Lamoreaux’s opinion that no further treatment was necessary; and penalties and interest, stating all benefits were paid or controverted in a timely manner.[90]

The first prehearing conference (PHC) in this case was held on September 20, 2006.[91] The issues for this PHC were the employee’s August 3, 2006 WCC including an SIME, with the employer’s defenses listed as the controversions discussed above and an Answer filed on August 31, 2006.[92] The PHC summary listed discussions of releases, scheduling a deposition, and “the SIME process.”[93] The PHC summary included the following:

Ms. Turpin is reminded that, if a controversion notice is served and filed, after the date of her workers’ compensation claim, she must serve and file an affidavit, in accordance with 8 AAC 45.070, requesting a hearing within the time limits set by AS 23.30.110(c) to avoid possible dismissal of her claim. AS 23.30.110(c) provides: “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.[94]

Another PHC was held on January 31, 2007.[95] The issues and defenses listed for this PHC were the same as were listed for the September 20, 2006 PHC.[96] The parties discussed rescheduling the employee’s deposition and SIME procedures.[97] The PHC summary included the same language referenced above regarding AS 23.30.110(c).[98]

A follow up PHC was held on March 7, 2007, with the same issues and defenses as the previous two PHCs.[99] The employee did not appear despite being properly noticed, and the PHC proceeded in her absence.[100] The employer noted the employee’s deposition was being rescheduled again.[101] The PHC summary included the same language referenced above regarding AS 23.30.110(c).[102] The employee stated at hearing she received no notice of this PHC.

On February 8, 2008, the employee sent the following e-mail to Mr. Weddle:

It was my understanding that once I gave you a deposition, you would okay for the workman’s comp board to follow through with the steps necessary for me to receive a second opinion. Then we could continue on with my claim. I was informed that it would take some time. However, a whole lot of time has come to pass. I would like to know whatever happened to my deposition once you received it.[103]

The employee testified at hearing that Mr. Weddle responded to her email stating “he would look into it,” but he did not follow up with her. Mr. Weddle stated at hearing that he did not recall responding to the email.

The next PHC was held September 8, 2008; once again the issues and defenses were the same as in the previous PHCs. However the employer raised the additional defense of AS 23.30.110(c)

based on the Controversion filed August 31, 2006.[104] The discussion section of the PHC summary included the following:

Today’s prehearing was held at the request of Ms. Turpin (referred hereafter and through the remainder of this summary as EE) regarding an SIME. EE told the Board Designee that she was under the impression through pervious (sic) prehearings that once her deposition was complete she would be able to continue with an SIME she had requested on the 08/03/2006 WCC. A review of the electronic and hard files involving this claim revealed three prehearings held prior to today’s on 09/20/2006, 01/31/2007 and 03/07/2007. The prehearing conference of 09/20/2006 only mentions that “The SIME process was also discussed.” The prehearing summary does not elaborate any further as to what was actually discussed about the SIME process. The 01/31/2007 prehearing summary states: “The parties discussed the rescheduling of Ms. Turpin’s deposition, SIME procedures and her statement at the last prehearing conference that there were several errors in the medical reports. Ms. Turpin will have the opportunity to list those at her deposition. The 03/07/2007 prehearing summary does not mention the SIME process and only states the following: “According to Mr. Weddle, Ms. Turpin’s deposition scheduled for February 7, 2007 was cancelled but is in process of being rescheduled.” The hard file contains a copy of EE’s deposition taken on March 14, 2007. The Board Designee asked Mr. Waller if his file contains any further information about an SIME after the deposition is completed. Mr. Waller told the Board Designee that his file contains nothing other than what is in the prehearing notices concerning the SIME process.

At today’s prehearing Mr. Waller raised the defense of AS 23.30.110(c). EE advised the Board Designee that she did not fully understand what was taking place and reiterated that she was under the impression that she would be able to proceed with the SIME after her deposition was completed. Further, after her deposition was completed she waited for the Board to contact her about the SIME, and after several months of waiting with no answer, she contacted the Board for a prehearing on the subject. The Board Designee explained to EE the defense of AS 23.30.110(c) Mr. Waller raised, and reviewed AS 23. 30.110(c) with EE and ER’s 08/31/2006 Controversion Notice that was properly filed.

A review of all three prehearing summaries (09/20/2006, 01/31/2007 and 03/07/2007) in the hard file indicates that EE was informed of AS 23.30.110(c). The following entries were made on all three summaries: “Ms. Turpin is reminded that, if a Controversion Notice is served and filed, after the date of her workers’ compensation claim, she must serve and file an affidavit, in accordance with 8 AAC 45.070, requesting a hearing within the time limits set by AS 23.30.110(c) to avoid possible dismissal of her claim.

AS 23.30.110(c) provides: “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.”

The Board Designee told EE that he could not order an SIME unless both parties stipulated to one at the prehearing and that Mr. Waller was objecting to an SIME based on the defense of AS 23.30.110(c).

The Board Designee told EE if she wished to pursue an SIME she would have to file a petition with the Board requesting an SIME. Additionally, EE needs to file an Affidavit of Readiness (ARH) requesting a hearing on the SIME petition. A blank Petition and ARH form is attached to this prehearing summary. EE and Mr. Waller were informed that a follow-up prehearing will be scheduled in forty-five days. This will allow both parties time to file their petition, ARH, and answers/oppositions. The follow-up prehearing is scheduled for Wednesday, October 29, 2008, at 2:30 PM, which is attached to this prehearing summary.

A list of local attorney (sic) specializing in workers’ compensation law in the State of Alaska is attached to this prehearing summary for EE’s benefit. EE is reminded to contact a Workers’ Compensation Technician at (907) 269-4980 if she has any questions or needs assistance in completing the Petition and ARH.”[105]

The employer filed a Petition on September 11, 2008, seeking dismissal of the employee’s claim pursuant to AS 23.30.110(c).[106] The employer filed an Affidavit of Readiness for Hearing (ARH) on October 16, 2008, seeking a hearing on its September 11, 2008 Petition.[107] A PHC was held on October 29, 2008, where the parties agreed to a hearing date of January 22, 2009.[108] At this PHC, the parties discussed employee’s October 20, 2008 petition for an SIME.[109] The Board received this Petition on October 24, 2008, but it was not in the file prior to the October 29, 2008 PHC.[110] In this Petition the employee again sought an SIME.[111] The employee attached a letter to the Board to the Petition, stating in relevant part:

…I am writing on my own behalf. I am appealing to the board to continue my claim in regards to my request for an SIME. I had filed a petition in August of 2006. In a prehearing on September 20, 2006. I was verbally told during the

course of the telephonic hearing that I would be allowed an SIME once I signed the four releases, and gave a deposition….Unfortunately, it is only listed on the hard copy of the Sept. 20, 2006 summary as; SIME was also discussed. I fulfilled the requests that were asked of me. I gave my deposition in March of 2007. I was under the impression that once completed, Mr. Weddle, the attorney for Alaska Seafoods, would build a questionnaire based upon findings for the board selected doctor. I was unaware that it would not go as I was told. I believed it was a matter of time. Therefore, I waited to be contacted. A sum of time passed and I contacted Mr. Weddle via email[112] asking him why I hadn’t heard anything. That it was my belief that my claim would continue once he received the deposition. His reply was, I’ll check on it. I believed he would and it was the last contact I had….I honestly thought (due to my lack of understanding the law) that the ball was in Mr. Weddle’s court in moving things forward once he received the deposition. I finally realized that it wasn’t a matter of waiting anymore nor was Mr. Weddle going to follow through. I contacted the Workman’s Comp finally to find out why it was taking so long for me to be contacted. Apparently, my claim was not followed through as I had initially thought it would be and I was told my statue(sic) of limitations had run out. I was quite surprised that no more action had been done….I had been told that dealing with Workman’s Comp takes a long time….I am not in the state of Alaska to be able to attend any of the hearings that have been held or to be able to hire a lawyer…I have contacted a couple of lawyers in Alaska who were unable to assist me at that time. (emphasis in original).[113]

Another PHC was held on December 15, 2008, regarding the employee’s October 20, 2008 Petition for an SIME.[114] The Board Designee included this issue in the January 22, 2009 hearing pursuant to 8 AAC 45.070(b)(3).[115]

EMPLOYEE’S TESTIMONY

The employee testified she thought she was doing what she needed to do to get an SIME. She maintains Mr. Weddle told her she would get an SIME if she signed releases and agreed to a deposition, and that she did everything requested of her. The employee further argued she thought the two year time limit was stopped by giving a deposition. The employee also testified that she contacted Mr. Weddle via e-mail on February 8, 2008, asking about the deposition and the SIME and Mr. Weddle responded “he would look into it.” The employee stated she was unable to provide the Board with a copy of the e-mail response from Mr. Weddle because she did not know how to retrieve it. The employee admitted she did not understand the law and only communicated with Mr. Weddle because she thought he would be the one arranging the SIME. She also stated she believed the SIME process was ongoing. The employee argued she did not understand the warning printed at the bottom of the PHC Summaries because she thought she was getting an SIME and, therefore, her claim would not be dismissed.

EMPLOYER’S ARGUMENTS AT HEARING

The employer argued that since the employee failed to request a hearing within two years of the August 31, 2006 Controversion, the employee’s claim is automatically dismissed as of August 31, 2008. The employer further argued the employee failed to pursue her claim when she waited eighteen months after her deposition to contact the Board. The employer contends the employee is not entitled to an equitable remedy even if Mr. Weddle did respond to the employee’s email in the way the employee alleged. The employer maintains the employee could have easily contacted one of the workers’ compensation technicians for assistance, and the employee was warned repeatedly in the PHC summaries of the consequences of not complying with AS 23.30.110(c). The employer asserts there is no evidence it took any action which caused the employee to delay in protecting her rights. The employer maintains Mr. Weddle made no representations to the employee that she would receive an SIME after signing releases and giving a deposition. The employer argues its counsel cannot be in the position of giving legal advice to the employee and she should have contacted a workers’ compensation technician. The employer argued that since the case was dismissed by law on August 31, 2008, the employee has no claim on which to request an SIME. The employer did not address the effect of the Supreme Court’s decision in Kim[116] on this matter, stating only that since the employee did not file an ARH or contact the Board stating that she could not file an ARH Kim would not bear on this case.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Is the employee’s claim barred by operation of AS 23.30.110(c)?

AS 23.30.110 (c) provides, in part, “[I]f 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.”

The time limit of AS 23.30.110(c) runs by operation of the statute. In the past the Board found dismissal under AS 23.30.110(c) automatic and non-discretionary.[117] In Tipton v. ARCO Alaska, Inc.,[118] the Alaska Supreme Court noted the language of AS 23.30.110(c) is clear, requiring an employee to request a hearing within two years of the date of controversion or face dismissal of his or her claim. The court also noted that the defense of statute of limitations is "generally disfavored," and that neither "the law [n]or the facts should be strained in aid of it."[119] In University of Alaska Fairbanks v. Hogenson, the Workers’ Compensation Appeals Commission (“AWCAC”) found, for continuing benefits such as TTD, a new claim for benefits may arise despite the statutory bar to benefits under an earlier-filed claim.[120]

The Alaska Supreme Court addressed dismissal under AS 23.30.110(c) in Kim v. Alyeska Seafoods, Inc.[121] The Supreme Court instructed that strict compliance with AS 23.30.110(c) is unnecessary because it is directory, not mandatory.[122] The Court stated when a procedural statute is directory

then “substantial compliance is acceptable absent significant prejudice to the other party.”[123] A claimant cannot simply ignore the statutory deadline and fail to file anything, but substantial compliance can include a notification to the Board that the party is not ready for an immediate hearing and the reasons for the inability, as well as a request for more time.[124] The Board has the discretion to deal with extraordinary circumstances and strict adherence to a procedural requirement is problematic when a party has to choose between perjury and dismissal.[125] The Board must consider the merits of a party’s request for more time and any resulting prejudice to the other party.[126]

The AWCAC has ruled, under Richard v. Fireman’s Fund, [127] the Board and its staff have a duty to inform unrepresented parties that the two-year limit of AS 23.30.110(c) is a “real fact” bearing on the employee’s claim. Further, the Board should ensure the parties present facts about whether a claimant was advised of the statutory time bar when it could result in denial of a claim.[128]

In Austin v. Norquest Seafoods, Inc., the Southeast Board panel recently excused the

AS 23.30.110(c) time bar.[129] The Board found the Division ineffectively communicated the two year time bar to an employee, and concluded the mandate under Richard v. Firemen’s Fund was not fulfilled.[130]

After an employee is adequately informed of the two year deadline, AS 23.30.110(c) requires an employee to prosecute his or her claim in a timely manner once it is controverted by the employer. The first controversion filed after the employee files a claim starts the two year time limitation contained in AS 23.30.110(c).[131]

The employer raises its AS 23.30.110(c) defense against the employee’s August 3, 2006 claim for additional TTD, additional PPI, interest, medical and transportation benefits, and an SIME. The employer controverted this claim on August 31, 2006. We find the employee filed no affidavit of readiness or other request for more time within two years of the August 31, 2006 controversion. Accordingly, we conclude benefits sought under the August 3, 2006 claim are time-barred by operation of AS 23.30.110(c) unless there is a legal basis for excusing the failure to file an ARH or request for more time within two years of the employer’s filing of the controversion notice. The Board also finds that the employer would not be prejudiced by a request for more time as the employer was aware from the employee’s e-mail communications that she thought an SIME was the next step in the process. Further, the Board finds the employer was aware the SIME process would likely exceed the two year window pursuant to AS 23.30.110(c).

In this case, the Board finds the employee credible.[132] We find that the Division did not adequately inform the employee of the two-year deadline under Richard, especially in light of her pending SIME request. The employee testified at hearing and in deposition she was unaware what to do in response to the August 2006 controversion, and she believed that the two year time period had stopped because she gave her deposition, as she understood it, to get an SIME. We find the employee received no information from Board Designee Walsh or other Division staff to correct this misunderstanding of the SIME process as it relates to the AS 23.30.110(c) time bar. The record reveals the employee profoundly misunderstood the adversarial nature of a workers’ compensation proceeding as indicated in her email contact with the employer’s attorney seeking

information on getting an SIME. We find the employee misunderstood the duties of Workers’ Compensation Division staff and expressed the expectation staff would contact her to assist with her claim. Despite the employer’s argument the employee could have been fully advised of her rights, and Board process and procedures from a Workers’ Compensation Technician, we find no evidence in the record that the Division ever informed the employee of this resource.[133] We find the means used by the Division to communicate the AS 23.30.110(c) time bar and its relationship to the employee’s SIME petition, including the language on the reverse side of the controversion form and the bottom of the PHC Summary, was ineffective as to this employee who demonstrated limited ability to understand the warning based upon her belief her case was awaiting an SIME before moving forward on the merits of her claim.[134] We find the employee consistently throughout the record and her testimony expressed this belief. Further, we find the Division failed to dispel this notion.

We reiterate, under AS 23.30.122, we find the employee’s testimony regarding the lack of any instruction or guidance from the Alaska Workers’ Compensation Division about the significance of a controversion filed after a claim has been filed, and the effect a pending SIME may have on this procedure, credible. We find the employee’s testimony she believed the two year deadline was stopped by her deposition credible. Further she testified after she read the warning on the bottom of the PHC Summary, she concluded, albeit wrongly, it did not apply to her because she was seeking an SIME and thereby pursuing her claim.[135] We conclude, pursuant to Kim, the employee substantially complied with AS 23.30.110(c) by actively pursuing her claim and participating in the SIME process.

Further, we find the employer was not prejudiced by the employee’s belief she was entitled to more time. We further find the employer facilitated the employee’s belief she was going to get an SIME by omission when employer’s counsel communicated with the employee via email regarding the SIME procedure while waiting for the AS 23.30.110(c) time limit to run. The employer could have easily avoided this situation by simply informing the employee that if she had questions regarding the SIME process she should contact a Workers’ Compensation Technician. Accordingly, we will deny the employer’s petition to dismiss the employee’s claim under AS 23.30.110(c).

In the alternative, we next turn to the question of whether the doctrine pronounced in Aune v. Eastwind[136] is sufficient to support the employee’s argument of the timeliness of the October 20, 2008 Petition, in the event our legal conclusions regarding AS 23.30.110(c), as applied to the facts we have found in this case, are incorrect. At issue in Aune was the interpretation and application of AS 23.30.110(c), which provided in pertinent 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-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.

In its Aune decision, the Board looked at not only how AS 23.30.110(c) should be analyzed, but also the impact an SIME has on AS 23.30.110(c)’s application. The Board stated AS 23.30.110(c) is a “no progress” rule, and, according to Professor Larson, should be analyzed like a statute of limitation defense.[137] The Board also noted that the Alaska Supreme Court has stated the defense of statute of limitations is “generally disfavored,” and that neither “the law [n]or the facts should be strained in aid of it.”[138]

The Board in Aune addressed the question of whether a party’s claims should be dismissed when Board action with the parties’ full consent and knowledge prevents the party from filing an Affidavit of Readiness. AS 23.30.110(c) does not permit a party to request a hearing unless an affidavit is filed stating that the party has completed the necessary discovery, obtained the necessary evidence and is prepared for the hearing. Recognizing that the Alaska Supreme Court generally disfavors the statute of limitations defense, and relying in part on language in

AS 23.30.110(c), the Aune Board found the Board Designee’s order requiring an SIME made the employee unable to comply with AS 23.30.110(c) during the SIME process.

The Superior Court dismissed the employer’s appeal of the Board’s decision in Aune on February 21, 2002. In doing so, the Superior Court noted, “Having determined that the Board’s decision appears to be sound and that a stay is unjustifiable, the court concludes that discretionary review should not be granted at this time….”[139] Consequently, we find no compelling reason not to apply the Board’s reasoning in Aune to this case’s facts.

We have long held the employee’s participation in the Board’s SIME process tolls the running of the AS 23.30.110(c) time clock during the SIME process;[140] this case seems to present the question of precisely what events bracket that “process.” Rollins v. Icicle Seafoods, Inc.[141] suggests the Board’s order for an SIME is the definitive tolling act under Aune. There is logic for the position that the Board’s act in initiating the SIME process effectively prevents the filing of an ARH, because the fact-gathering process is not complete while the Board and parties await the SIME report. Greenwood v. Alaska Fleet Services, Inc.[142] holds the SIME time clock re-starts upon SIME report issuance, unless follow up questions under 8 AAC 45.092 or a deposition extend the SIME process.

From the employee’s perspective, the Aune doctrine as applied to the AS 23.30.110(c) time clock is triggered either by the Board’s receipt of evidence showing a material medical dispute[143] or by an employee’s request for an SIME. And, further, the time clock is tolled for as long as the employee cooperates with the SIME process, and is re-started when the employee receives the SIME report, or the SIME process, including any post-report interrogatories or a deposition, is otherwise completed.[144] In light of the Supreme Court’s recent Kim decision[145] with which the Aune doctrine comports, it is only then that an employee can affirmatively certify as to completeness of discovery, readiness for hearing, and other matters required to be certified in completing the ARH. Delaying the tolling of the time clock until the parties enter into an agreement for an SIME or, if disputed, until the Board orders or denies an SIME, can result in a significant passage of time. This view casts doubt on the holding in Rollins[146] because the rule to toll AS 23.30.110(c) only with a Board order could reward an employer and penalize an employee for delays occurring through no fault of the employee in the Board’s order for an SIME, as happened here, where the Board received evidence of a material medical dispute as early as December 2005, and the employee requested an SIME, on August 7, 2006.

We find the employee requested an SIME when she filed her claim on August 7, 2006. We find the employee credible when she stated she believed she was participating in the SIME process by

agreeing to sign releases and give a deposition. We find the employee continued in this belief as evidenced by her email communication with Mr. Weddle. We further find the employee acted in good faith in pursuing her claim and seeking an SIME, and has not been obstructive in cooperating with the employer’s requests for discovery as evidenced by her signing the releases and participating in the deposition. We also find the employer has not been prejudiced by any action of the employee.

II. Shall the Board order an SIME under AS 23.20.095(k) or AS 23.30.110(g)?

AS 23.30.095(k) provides, in part:

In the event of a medical dispute regarding determinations of causation . . . or compensability between the employee's attending physician and the employer's independent medical evaluation, the board may require that a second independent medical evaluation be conducted by a physician or physicians selected by the board from a list established and maintained by the board. The cost of an examination and medical report shall be paid by the employer. The report of an independent medical examiner shall be furnished to the board and to the parties within 14 days after the examination is concluded.

AS 23.30.110(g) provides, in part:

An injured employee claiming or entitled to compensation shall submit to the physical examination by a duly qualified physician, which the board may require. The place or places shall be reasonably convenient for the employee. . . .

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, or where payments of compensation have been increased, reduced, terminated, changed, or suspended, upon receipt of notice from a person entitled to compensation, or from the employer, that the right to compensation is controverted, or that payments of compensation have been increased, reduced, terminated,

changed, or suspended, 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.

Under our regulation, 8 AAC 45.090(b), we can order the employer to pay for employee examinations under AS 23.30.095(k) or AS 23.30.110(g). We have long considered AS 23.30.095(k) and AS 23.30.110(g) to be procedural in nature, not substantive, for the reasons outlined in Deal v. Municipality of Anchorage,[147] and Harvey v. Cook Inlet Pipe Line Co.[148] Considering the broad procedural discretion granted to us in AS 23.30.135(a) and AS 23.30.155(h), we conclude we have wide discretion under AS 23.30.110(g) to consider any evidence available when deciding whether to order an SIME to assist us investigating and deciding medical issues in contested claims. AS 23.30.155(h) mandates the Board follow such procedures as will best “protect the rights of the parties.”

The Alaska Workers’ Compensation Appeals Commission (“AWCAC”) in Bah v. Trident Seafoods Corp.,[149] addressed the Board’s authority to order an SIME under AS 23.30.095(k) and

AS 23.30.110(g). With regard to AS 23.30.095(k), the AWCAC referred to its decision in Smith v. Anchorage School District, in which it confirmed, as follows:

[t]he statute clearly conditions the employee's right to an SIME . . . upon the existence of a medical dispute between the physicians for the employee and the employer.[150]

The AWCAC further stated before ordering an SIME, the Board must find the medical dispute is significant or relevant to a pending claim or petition and the SIME would assist the board in resolving the dispute.[151]

The AWCAC further outlined the Board's authority to order an SIME under AS 23.30.110(g), as follows:

[T]he board has discretion to order an SIME when there is a significant gap in the medical or scientific evidence and opinion by an independent medical examiner or other scientific examination will help the board in resolving the issue before it.[152]

Under either AS 23.30.095(k) or AS 23.30.110(g), the AWCAC noted the purpose of ordering an SIME is to assist the Board, but is not intended to give employees an additional medical opinion at the employer’s expense when the employee disagrees with their own physicians’ opinions.[153]

When deciding whether to order an SIME, the Board considers the following criteria:

1. Is there a medical dispute between the employee’s physician and the employer’s independent medical evaluation physician? and

2. Is the dispute significant? or

3. Will an SIME physician’s opinion assist the Board in resolving the disputes?[154]

The Board finds the EME physicians have opined the employee suffered a contusion on the proximal shin which is resolved, is medically stable, she is able to return to work without restriction and has no PPI. The Board also finds the employee’s treating physicians have opined the employee’s persistent right knee pain with radiation down to the tibia, radiating pain and numbness from the right buttock down the anterolateral leg, right hip burisitis, and biomechanical compromise are related to the work-injury, and her symptoms have not resolved and require further treatment. Considering the entire record in this matter, the relevant and significant dispute between the employee’s treating physicians and the employer’s independent medical evaluations, significant gaps in the medical evidence, and the complicated nature of the injury in this case, we find an SIME will assist us in resolving the dispute. The Board finds an SIME is required to assist the Board in

determining if the work-related injury caused the employee’s continuing radiating pain and numbness from the right buttock down the leg, achy low back pain, and impaired gait, if these symptoms are resolved, if the work-related injury caused, aggravated, or accelerated the employee’s symptoms, if the employee is medically stable, if an additional PPI rating is appropriate at this time, what that additional PPI rating is, what portion of PPI is related to the work-related injury, and if future medical treatment is required for the work-related injury.

The Board finds an SIME will assist the Board in best ascertaining the rights of the parties.[155] We will exercise our discretion under the Act to order an SIME performed by orthopedist Thomas Gritzka, MD, and neurologist Bruce McCormack, MD.[156] The Board finds that due to the complicated nature of the employee’s complaints and the range of physicians offering opinions in this case that SIMEs from both an orthopedist and a neurologist would assist the Board in resolving the disputes. The Board orders Prehearing Officer Richard Degenhardt to initiate the SIME process. The Board retains jurisdiction over this matter.

ORDER

1. The employer’s petition to dismiss pursuant to AS 23.30.110(c) is denied and dismissed.

2. Workers’ Compensation Officer Richard Degenhardt is remanded this matter to initiate the SIME process as ordered above.

3. We retain jurisdiction over the employee’s claim, pending receipt of the SIME report.

Dated at Anchorage, Alaska on March 18, 2009.

ALASKA WORKERS' COMPENSATION BOARD

____________________________

Laura Hutto de Mander, Designated Chair

____________________________

David Robinson, Member

____________________________

Richard Behrends, Member

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.

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.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Interlocutory Decision and Order in the matter of ALICE TURPIN, employee / claimant v. ALASKA GENERAL SEAFOODS, employer; ZURICH AMERICAN INSURANCE CO. AND NORTHERN ADJUSTERS, INC., insurer / defendants; Case No. 200411354; dated and filed in the office of the Alaska Workers' Compensation Board in Anchorage, Alaska, on March 18, 2009.

________________________________

Jessica Sparks, Clerk

-----------------------

[1] Report of Occupational Injury or Illness, 7/8/04.

[2] Id.

[3] Id.

[4] Physician Record, Camai Community Clinic, 7/8/04, M. Yager, PAC.

[5] Id.

[6] Physician’s Report, M. Yager, 7/8/04.

[7] Deposition of employee, p. 11.

[8] Chart note, M. Flechtall, 8/17/04.

[9] Id.

[10] Id.

[11] Id.

[12] Chart note, M. Flechtall, 10/22/04.

[13] Id.

[14] Work Status Report, M. Flechtall, 11/9/04.

[15] Chart Note, L. Lamoreaux, 11/9/04.

[16] Magnetic Resonance Imaging.

[17] Chart Note, L. Lamoreaux, 11/9/04/

[18] MRI Report, C. Deaton, MD, 11/17/04.

[19] Chart Note, L. Lamoreaux, 1/18/05.

[20] Id.

[21] Id.

[22] Work Status Report, 2/8/05.

[23] Report of Operation, 3/3/05, L. Lamoreaux.

[24] Id.

[25] Id.

[26] Progress Note, L, Lamoreaux, 3/12/05.

[27] Chart Note, L. Ward, 3/15 and 3/17/05.

[28] Chart Note, L. Lamoreaux, 3/29/05.

[29] Chart Note, D. Frerichs, 4/12/05.

[30] Chart Note, L. Ward, 4/15-6/14/05.

[31] Chart Note, L. Lamoreaux, 6/20/05.

[32] Id.

[33] Id.

[34] Chart Note, L. Ward, 6/23-8/08/05.

[35] Work Status Report, L. Lamoreaux, 8/8/05. It is noted that “medically stationary” is a term of art used in Oregon.

[36] Chart Note, L. Lamoreaux, 8/8/05.

[37] Letter to J. Cal, Adjuster, from L. Lamoreaux, 8/8/05.

[38] Id.

[39] Id. See also Fax from J. Kell, Adjuster to L. Lamoreaux, 8/28/05.

[40] Chart Note, R. DuPriest, 12/5/05.

[41] Id.

[42] Id.

[43] Id.

[44] Letter from A. Woodward to M. Wentworth, 12/15/05.

[45] Id.

[46] Id.

[47] Letter from A. Woodward to M. Wentworth, 12/30/05.

[48] Chart Note, L. Wilson, MD, 5/11/06.

[49] MRI Report, J. Ekstrom, MD, 5/26/06.

[50] Chart Note, L. Lamoreaux, 5/30/06.

[51] Id.

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Chart Note, M. Flechtall, 6/6/06.

[57] Id.

[58] Chart Note, L. Lamoreaux, 6/20/06.

[59] Id.

[60] Id.

[61] Id.

[62] Id.

[63] Chart Note, D. Lippincott, 7/5/06.

[64] Id.

[65] Id.

[66] Id.

[67] Electromyogram and Nerve Conduction Studies.

[68] Id.

[69] Chart Note, M. Flechtall, 7/28/06.

[70] Id.

[71] Id.

[72] Letter to M. Wentworth from A. Woodward, 8/23/06.

[73] Id.

[74] Chart note, D. Lippincott, 1/5/07.

[75] Id.

[76] Id.

[77] Id.

[78] Id.

[79] Id.

[80] Report of Occupational Injury or Illness, 7/8/04.

[81] Compensation Report, 12/28/05.

[82] Id.

[83] Fax from J. Kell, Adjuster, to D. Saltzman, 8/28/05.

[84] Letter to A. Turpin from F. Stoll, 9/6/05.

[85] Letters to D. Saltzman from J. Rubin, 9/28/05, 11/1/05.

[86] Letter to D. Saltzman from J. Rubin, 11/18/05.

[87] Letter to F. White from J. Rubin, 12/12/05.

[88] Controversion Notice, 12/28/05.

[89] WCC, 8/7/06.

[90] Controversion Notice, 8/31/06.

[91] Prehearing Conference Summary, 9/20/06.

[92] Id.

[93] Id.

[94] Id.

[95] PHC Summary, 1/31/07.

[96] Id.

[97] Id.

[98] Id.

[99] PHC Summary, 3/7/07.

[100] Id.

[101] Id.

[102] Id.

[103] Employee’s email to R. Weddle, 2/8/08, attached to Employer’s Hearing Brief as Exhibit 11.

[104] PHC Summary 9/8/08.

[105] PHC Summary 9/8/08. Mr. Waller appeared on behalf of the employer in substitution for Mr. Weddle.

[106] 9/11/08 Petition.

[107] ARH, 10/16/08.

[108] PHC Summary, 10/29/08.

[109] Id.

[110] Id. See also Petition, 10/24/08 received, 11/6/08 filed.

[111] Petition, 10/24/08.

[112] Attached to Employer’s Hearing Brief as Exhibit 11.

[113] Employee’s letter to AWCB, 10/20/08.

[114] PHC Summary, 12/15/08.

[115] Id.

[116] Kim v. Alyeska Seafoods, Inc., Dec. No. 6325, Alaska Supreme Court, Dec. 5. 2008.

[117] See, e.g., Hornbeck v. Interior Fuels, AWCB Dec. No. 08-0072, at 4, n. 2 (Apr. 17, 2008)(citing authorities); Beaman v. Kiewit Construction, AWCB Decision No. 06-0101 (April 27, 2006); Pool v. City of Wrangell, AWCB Decision No. 99-0097 (April 29, 1999); Westfall v. Alaska International Const., AWCB Decision No. 93-0241 (September 30, 1993).

[118] 922 P.2d 910, 912, 913 (Alaska 1996); accord, Hornbeck v. Interior Fuels, AWCB Dec. No. 08-0072, at 4, n. 5 and accompanying text (Apr. 17, 2008).

[119] Id. at 911.

[120] AWCAC Decision No. 074 (February 20, 2008) at 17.

[121] Kim v. Alyeska Seafoods, Inc., Dec. No. 6325, Alaska Supreme Court, Dec. 5, 2008.

[122] Id.

[123] Id. Citing S. Anchorage Concerned Coal, Inc., v. Mun. of Anchorage, Bd. Of Adjustment, 172 P.3d 768, 772 (Alaska 2207) (citing In re Weiderholt, 24 P.3d 1219, 1233 (Alaska 2001)).

[124] Id.

[125] Id.

[126] Id.

[127] 384 P.2d 445, 446 (Alaska 1963). Accord, Dwight v. Humana Hosp. Alaska, 876 P.2d 1114, at 1120 (Alaska 1994)(discussing Richard).

[128] Alaska Airlines v. Nickerson, AWCAC Dec. No. 021 (Oct. 19, 2006), at 13-15 (remanding to board for findings of fact).

[129] Austin v. Norquest Seafoods, Inc., AWCB Dec. no. 08-0114 (June 18, 2008).

[130] Id.

[131] The board’s regulation, 8 AAC 45.090(a), provides that proceedings are commenced by “filing a written claim or petition.” In turn, a claim is defined by 8 AAC 45.090(b)(1) as “a request for compensation, attorney’s fees, costs or medical benefits . . .under the Act.”

[132] AS 23.30.122.

[133] The Board notes specifically that the “Workers’ Compensation and You” pamphlet does not specifically advise injured workers of the resource of a workers’ compensation technician.

[134] See Richard v. Fireman’s Fund, Inc., 384 P.2d at 448 (failure of board to instruct employee how to proceed for order for out-of-state medical care for eye condition; employee’s eye lost); Dwight v. Humana Hosp. Alaska, 876 P.2d 1114, at 1120 (Alaska 1994)(board duty to inform of right to request SIME); Austin v. Norquest Seafoods, Inc., AWCB Dec. No. 08-0114 (June 8, 2008)(failure to adequately inform of Section .110(c) deadline, denying defense).

[135] Kim v. Alyeska Seafoods, Inc., Dec. No. 6325, Alaska Supreme Court, Dec. 5, 2008. “A party who wants to request a future hearing, but is for legitimate reasons unable to truthfully state readiness for an immediate hearing, faces denial of workers’ compensation benefits….A party or attorney should not be in a position of having to choose between perjury and relinquishing a valid claim.” Also finding that substantial compliance is sufficient under AS 23.30.110(c).

[136] AWCB Dec. No. 01-0259 (Dec. 19, 2007).

[137] See 2 ARTHUR LARSON & LEX K. LARSON, LARSON’S WORKERS’ COMPENSATION LAW § 126.13[4] (2000) (footnotes omitted).

[138] Tipton v. ARCO Alaska, Inc., 922 P.2d 910, 911 (Alaska 1996).

[139] Quality Asphalt Paving, Inc., v. Aune, Case No. 3AN-02-3918 CI (Alaska Superior Court, February 21, 2002).

[140] E.g., Connors v. Ivory Jacks, AWCB 06-0306 (Nov. 17, 2006), at 5 (citing cases).

[141] AWCB Dec. No. 07-0071 (Apr. 3, 2007).

[142] AWCB Dec. No. 04-0096 (Apr. 28, 2004).

[143] We noted that the Richard v. Fireman’s Fund case began with a correspondence from a physician filed with the board, and an apparent failure of the board to apprise the employee of the legal significance of this physician’s correspondence. In finding the board had failed its duty to the employee in that case, the Court in Richard cited other case opinions with strongly-worded descriptions of a workers’ compensation board’s fiduciary duty to an employee that had filed seeking an award of benefits. 384 P.2d at 449, n. 15, citing Cole v. Town of Miami, 52 Ariz. 488, 494, 83 P.2d 997, 1000 (Ariz. 1938)(workers’ compensation board owed fiduciary duty to applicant to reveal prognosis of total disability known by board-mandated physician before employee entered into settlement of permanent disability claim); Yurkovich v. Industrial Accident Bd., 132 Mont. 77, 82, 314 P.2d 866, 869-71 (1957)(quoted)(duty of board to “see that [employee’s] rights under the law were protected”), citing Miller v. AETNA Life Ins. Co., 101 Mont. 212, 220, 53 P.2d 704, 708-09 (1936)(duty of board to investigate misleading and incorrect postings of notice of insurance by employer). See Dwight v. Humana Hosp. Alaska, 876 P.2d at 1120 (board duty to inform of right to request SIME).

[144] See, e.g., Aune v. Eastwind, Inc., AWCB Dec. No. 01-0259 (Dec. 19, 2001), pet. rev. den., 3 AN-02-3918 CI (Alaska Sup’r Ct., Feb. 21, 2002)(holding that the employee’s knowledge of need for SIME prevents filing of an ARH until SIME is provided); but see Rollins v. Icicle Seafoods, Inc., AWCB Dec. No. 07-0071 (Apr. 3, 2007)(dictum that only a board order stops the Sec. .110(c) time clock; actual holding that employee never produced medical evidence showing a material dispute, to support an SIME; mere unsupported request for SIME insufficient to apply the Aune tolling doctrine).

[145] Dec. No. 6325, Alaska Supreme Court, Dec. 5, 2008.

[146] AWCB Dec. No. 07-0071 (Apr. 3, 2007). The board’s order for an SIME is the definitive act that tolls under Aune.

[147] AWCB Decision No. 97-0165 (July 23, 1997) at 3.

[148] AWCB Decision No. 98-0076 (March 26, 1998).

[149] AWCAC Decision No. 073 (February 27, 2008).

[150] AWCAC Decision No. 050 (January 25, 2007), at 8.

[151] Bah v. Trident Seafoods Corp., AWCAC Decision No. 073 (February 27, 2008), at 4.

[152] Id., at 5.

[153] Id.

[154] Deal v. Municipality of Anchorage (ATU), AWCB Decision No. 97-0165 at 3 (July 23, 1997). See also, Schmidt v. Beeson Plumbing and Heating, AWCB Decision No. 91-0128 (May 2, 1991).

[155] AS 23.30.135(a)

[156] See generally AS 23.30.095(k), 8 AAC 45.090(b), AS 23.30.135(a), AS 23.30.155(h), AS 23.30.110(g).

-----------------------

[pic][pic]

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download