12-0005. TIMOTHY J. BROWN Employee v. ICICLE SEAFOODS INC. Employer and SEABRIGHT INSURANCE INC. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0005. TIMOTHY J. BROWN Employee v. ICICLE SEAFOODS INC. Employer and SEABRIGHT INSURANCE INC. Insurer Defendants Alaska Workers' Compensation Appeals Commission TIMOTHY J. BROWN, Employee, Applicant, v. ICICLE SEAFOODS, INC., Employer, and SEABRIGHT INSURANCE, INC., Insurer, Defendants. AWCB Decision No. 12-0005Filed with AWCB Anchorage, Alaskaon January 6, 2012AWCB Case No. 201003004INTERLOCUTORY DECISION AND ORDERIclcle Seafoods' (Employer) November 14, 2012 petition to compel Timothy Brown (Employee) to provide discovery, or in the alternative to dismiss his July 24, 2010 and September 8, 2010 Workers' Compensation Claims for failure to comply with discovery orders, was heard on January 4, 2012, in Anchorage, Alaska. Employee represented himself, and appeared and testified telephonically. Attorney Rebecca Holdiman-Miller appeared and represented Employer and its workers' compensation insurer. At hearing, Employee made an oral continuance request, which was heard as a preliminary matter, and orally denied. This decision examines the propriety of the oral order denying Employee's continuance request, memorializes it, and addresses the merits of Employer's November 14, 2012 petition. The record closed at the hearing's conclusion on January 4, 2012. ISSUES As a preliminary matter, Employee contended he misunderstood the hearing's nature and purpose. Employee believed the hearing was actually a prehearing conference, which the parties had agreed many months ago would be held on this date. As he had not yet obtained legal counsel, and was confused about the hearing's nature and purpose, Employee contended he needed more time and was entitled to, and orally requested, a continuance. Employer contended Employee had ample notice of the hearing. Absent evidence of good cause to continue, Employer opposed Employee's continuance request. 1) Was the oral order denying Employee's continuance request proper? Employer contended Employee was properly served with discovery releases and interrogatories, received these materials, failed to file a petition for a protective order, and failed to timely deliver the releases without alterations or provide meaningful answers to its questions. It contends he engaged in a willful pattern of delaying or outright refusing to provide discovery, even after being ordered at a prehearing conference to respond. Employer contends Employee should be ordered to sign and deliver the releases and give a deposition, or alternately, his claims should be dismissed. Employee contended he did not want to sign and deliver discovery releases because he did not want Employer to use these releases to discover information it could use against him. He also objected because he contended the insurer already had all the relevant information. Employee contended he did not understand what interrogatories or a deposition were, and contended they were unnecessary. After the designated chair explained Employee his rights under the law and his obligations to provide discovery, the various types of discovery including what he could expect at his deposition, and why discovery is important, Employee agreed to sign and deliver the subject releases and agreed to appear for and participate in his deposition in Seattle, Washington on February 10, 2012. 2) Should Employer's petition to compel discovery from Employee, or dismiss his claims for failure to provide discovery, be granted? FINDINGS OF FACT Evaluation of the relevant record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) On or about March 1, 2010, Employee reported an injury while working for Employer (Report of Occupational Injury or Illness, undated by Employee, but dated March 12, 2010, by Employer). 2) On July 19, 2010, and again on September 13, 2010, respectively, Employee filed claims requesting a variety of benefits and various forms of relief (Workers' Compensation Claims, July 24, 2010; September 8, 2010). 3) On September 12, 2011, Employer served Employee at his Florida and Washington addresses with various releases for his signature and return attached to a letter explaining his right to file a petition for a protective order (letter, September 12, 2011; see Employer's Hearing Brief, Ex. 16). 4) On September 20, 2011, Employee signed for the letter sent to his Washington address (United States Postal Service documents; see Employer's Hearing Brief, Ex. 16). 5) Employee admitted he received the letter with the attachments (Brown). 6) Employee did not sign and deliver the releases or file a petition for a protective order within 14 days of the date he signed for them, September 20, 2011 (id.; record). 7) On October 10, 2011, Employer filed and served a petition for an order compelling Employee to sign and deliver the releases (Petition, October 10, 2010). 8) At an October 11, 2011 prehearing conference, the parties stipulated to a January 4, 2012 hearing on the merits of Employee's two claims. Employer's October 10, 2011 petition to compel was not addressed at this prehearing conference because Employee's time to respond to the petition had not yet expired (Prehearing Conference Summary, October 11, 2011; observations). 9) The issues for hearing were clearly set forth in the prehearing conference summary, and included Employee's claims on their merits (id.). 10) On October 11, 2011, the prehearing conference summary was served on Employee at his address of record (id.). 11) Employee did not testify he did not receive the summary (Brown). 12) On November 9, 2011, Employer received the cover letter and releases from Employee. The releases were either unsigned or signed but modified making them ineffective for their original purposes (Employer's Hearing Brief, Ex. 21). 13) On November 14, 2011, Employer filed another petition, requesting an order compelling Employee to sign and deliver the releases or for the immediate dismissal of Employee's claims (Petition, November 14, 2011). 14) On November 15, 2011, Employer served Employee with extensive interrogatories for his review and response (see Employer's Hearing Ex. 23). 15) At a December 1, 2011, prehearing conference, the board's designee ordered Employee to sign and deliver the releases, and Employer's October 10, 2011 petition for an order to compel was added as a preliminary issue for the January 4, 2012 hearing (Prehearing Conference Summary, December 1, 2011). 16) Employee did not sign and deliver the unaltered releases within 10 days of that order (record). 17) At a December 13, 2011 prehearing conference, the issues for the January 4, 2012 hearing were changed to limit the hearing to Employer's November 14, 2011 petition to compel or dismiss (Prehearing Conference Summary, December 13, 2011). 18) On December 27, 2011, Employer received Employee's responses to its interrogatories, but the answers Employee provided were mostly non-responsive (see Employer's Hearing Brief, Ex. 27). 19) At hearing on January 4, 2012, Employee requested a continuance and offered as reasons for his request, confusion over the type and purpose of the hearing, and his lack of a lawyer (Brown). 20) Employee thought the merit hearing was just another prehearing conference, set by the parties' prior agreement for another conference after the first of the new year (id.). 21) Employee was trying to find legal representation, but had been unsuccessful, and offered no other reasons for requesting a continuance (id.). 22) Employee provided no evidence of good cause to relieve him from his agreement to have a hearing on January 4, 2012, and he failed to appear at subsequent prehearing conferences at which the issues were narrowed to Employer's petition to dismiss (Brown; record). 23) When a hearing is continued, especially on the docketed date, it is impossible to fill the time with another hearing with other parties because the law requires at least 10 days notice to parties of a hearing (experience, judgment). 24) Employee's reasons for requesting a hearing continuance are not among those listed in the controlling regulation's definition of "good cause" to continue a hearing (observations). 25) Employer has been trying to obtain discovery releases from Employee for months (record). 26) Employee has not cooperated with these efforts (observations). 27) Employee expressed great confusion and frustration concerning his rights and duties under the law in respect to discovery (Brown; observations). 28) At hearing on January 4, 2012, the designated chair as part of his duties under Richard and Bohlmann, advised Employee concerning his rights and his responsibilities in regard to discovery (record). 29) Employee expressed understanding of this explanation and stated his agreement to sign, date and deliver replacement releases, unaltered, to Employer's counsel (Brown). 30) Employer's counsel agreed to provide another copy of the subject releases to Employee as soon as possible (record). 31) Employer also wanted to depose Employee, who had concerns over the requirements and necessity of a deposition (Employer's hearing arguments). 32) The designated chair advised Employee what to expect at his deposition, and explained it was simply another discovery method (record). 33) Employee agreed to participate in his deposition in Seattle, Washington, at Employer's counsel's office, on February 10, 2012 (Brown). 34) Employer did not press the...