12-0009. SAMI A. SAAD Employee v. TRIDENT SEAFOODS CORP. Employer and LIBERTY MUTUAL INSURANCE CO. Insurer Defendants.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0009. SAMI A. SAAD Employee v. TRIDENT SEAFOODS CORP. Employer and LIBERTY MUTUAL INSURANCE CO. Insurer Defendants Alaska Workers' Compensation Appeals Commission SAMI A. SAAD, Employee, v. TRIDENT SEAFOODS CORP., Employer, and LIBERTY MUTUAL INSURANCE CO., Insurer, Defendants. AWCB Decision No. 12-0009 Filed with AWCB Anchorage, Alaska on January 12, 2012 AWCB Case No. 200708366 INTERLOCUTORY DECISION AND ORDER Trident Seafoods Corporation and its insurer, Liberty Mutual Insurance Company's (collectively, Employer) petition to dismiss for failure to comply with discovery was heard on December 7, 2011, in Anchorage, Alaska. Sami Saad (Employee) appeared telephonically, represented himself and testified. Attorney Jeffrey Holloway appeared for Employer. No other witnesses were called. An oral order setting deadlines for signing releases was issued. Employee was allowed until December 27, 2011, within which to deliver signed, unaltered releases to Employer or dismissal would be granted. The record closed on December 28, 2011, when Employer filed an Affidavit reflecting its receipt of the releases. This decision memorializes the oral order, and resolves the petition to dismiss. ISSUE Employer contends Employee has repeatedly thwarted its efforts to effectively conduct discovery, most recently failing to return releases as previously ordered, and his claim should be dismissed. Employee contends he signed and returned the releases sent to him, and the alterations he made to them were condoned by the prehearing officer. If his alterations are unacceptable to the board, he contends, he will sign unaltered releases. Should Employee's claim for benefits be dismissed as a sanction for failing to sign and return unaltered releases? FINDINGS OF FACT These findings are limited to those necessary to answer the narrow question whether Employee's claim for benefits should be dismissed as a sanction for failing to return unaltered releases. The following facts and factual conclusions are established by a preponderance of the evidence:
1) On March 18, 2007, while working for Employer, Employee reportedly began experiencing pain in his right middle finger. (Report of Occupational Injury).
2) On October 22, 2008, Employer controverted all benefits based on an employer's medical evaluation (EME) opining Employee's condition did not result from his employment. (EME Report, September 30, 2008; Notice of Controversion).
3) On January 1, 2009, Employee filed a Workers' Compensation Claim (WCC) seeking temporary total disability (TTD), permanent partial impairment (PPI), medical costs, and alleging unfair and frivolous controversion, for bilateral hand injuries, specifically bilateral tendon sheath ganglions, resulting from long hours performing repetitive work in Employer's fish processing plant in 2007. (WCC).
4) Employer again controverted all benefits. (Controversion Notices, various).
5) Between July 9, 2009 and November 10, 2011, thirteen prehearing conferences were conducted in this case. (Record; Prehearing Conference Summaries dated July 9, 2009, February 16, 2010, April 9, 2010, April 16, 2010, June 24, 2010, October 13, 2010, November 30, 2010, April 28, 2011, May 5, 2011, August 4, 2011, October 20, 2011, November 10, 2011).
6) At the July 9, 2009 prehearing conference, the parties stipulated to a second independent medical evaluation (SIME), and deadlines were established for completing the SIME binders. The prehearing conference summary notified the parties that if it was necessary to cancel or change the SIME appointment date or time, the requesting party must advise the board's designee and the physician's office immediately. (Prehearing conference summary, July 9, 2009 at 2-3).
7) On January 12, 2010, Employer sent Employee a set of releases for signature. The letter informed Employee he had 14 days within which to sign and return the releases or to file a petition for a protective order. (Letter from Richard Degenhardt, Jr. to Employee, January 12, 2010).
8) Employee did not timely return the releases, and did not file a petition for a protective order. (Petition to Compel, February 9, 2010).
9) On February 9, 2010, Employer filed a petition seeking to compel Employee to sign the proffered releases. (id.).
10) At a February 16, 2010 prehearing conference, the board designee was informed the SIME had been scheduled with Christopher Wilson, M.D., on January 5, 2010, but Employee failed to attend. Employee alleged he notified Employer's counsel's office in December, 2009, he needed four to six weeks advance notice of an SIME, he was out of the country on the date the SIME was scheduled, and did not receive notice of it until he returned on January 23, 2010, after the date the SIME appointment was scheduled to take place. Employer was charged a no show fee by the SIME physician. Employee requested the SIME be re-scheduled with a doctor other than Dr. Wilson. The parties agreed that if the designee was able to schedule the SIME with another physician she would do so. Otherwise it would be re-scheduled with Dr. Wilson. The parties further agreed to the unusual procedure that the Employer would not be told the name of the SIME physician, or the date of the SIME, until after it had occurred. (Prehearing conference summary, February 16, 2010 at 2).
11) At the February 16, 2010 prehearing conference, Employee agreed to sign and return the releases. (Prehearing conference summary, February 16, 2010 at 2).
12) On March 11, 2010, the board designee selected John J. Lipon, D.O., from Bellevue, Washington, to perform the SIME. It was scheduled for April 24, 2010. As agreed at the prehearing conference, the notice sent to Employer omitted the date of the SIME and the identity of the SIME physician. (Letters from designee to Dr. Lipon and Employee, with redacted copies sent to Employer, March 11, 2010).
13) On March 31, 2010, Employer filed a petition to stay the SIME alleging a medical release Employee signed and returned was ineffective for obtaining records from the medical providers Employee claimed to have visited in Dubai, U.A.E. in January 2010. The affidavit accompanying the petition reported that the affiant contacted Al Noor Hospital and was informed all hospital records are privileged and cannot be released to anyone other than the patient, or to a third party bearing an order from the Court of First Instance of the United Arab Emirates. The affiant further reported he was unable to locate Dr. Ahmed Mostafa Al Okla, reportedly Employee's physician, in the U.A.E. (Petition to Stay SIME, Affidavit of Richard Degenhardt, Jr., March 31, 2010).
14) At an April 9, 2010 prehearing conference, Employer argued the SIME should be postponed because the medical records from Employee's treatment in the U.A.E. had not been obtained. Employee argued he has done everything to cooperate with Employer's requests for releases, he was willing to return to Dubai to obtain his medical records for Employer if Employer paid for his return trip, Employer's representative was an attorney and should know how to obtain the records, and obtaining the record was Employer's problem, not his. The request to stay the SIME was set for hearing on April 21, 2010. (Prehearing conference summary, April 9, 2010).
15) An April 16, 2010 prehearing conference was scheduled when Employee advised the board designee he was scheduled to be out of the country for treatment with a new physician on the date of the April 21, 2010 hearing. Both parties appeared. Employer requested the name of the new physician, but Employee could only recall his first name, "Richard," a surgical specialist from Khartoum, Sudan. The board designee reminded Employee that Alaska law requires him to provide medical information relevant to his claim to Employer and the board or his claim could be dismissed. Employee agreed to provide Employer the names and addresses of both physicians he will be seeing, and agreed to return from his medical visit with copies of his medical records and provide them to Employer. Employer reiterated its objection to the SIME going forward until all medical records related to Employee's claim of injury had been obtained. The petition to continue the SIME was re-scheduled for hearing on May 12, 2010. (Prehearing conference summary, April 16, 2010).
16) On April 26, 2010, Employer filed a Supplemental SIME binder containing the medical records from Claimant's January, 2010 treatment by Dr. Ahmed Mostafa Al Okla, and Al Noor Hospital, in Dubai, U.A.E. (Supplemental SIME Binder).
17) At the hearing on May 12, 2010, Employee failed to appear. Finding Employee received actual notice of the hearing, the matter proceeded in his absence. Employer notified the board it had not received the medical records from Employee's medical treatment the previous month. But in order to move the case forward without further delay, Employee modified its earlier request the May 29, 2010 SIME be postponed or cancelled, and instead asked that the SIME physician's clinical and physical examination of Employee proceed as scheduled, but the SIME physician be instructed not to issue his written report until he received all of the medical records from the board, including those from Employee's overseas medical care. Employer's request the SIME take place, but the report await issuance until the SIME physician receives
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