12-0013. NATHANAEL W. HARKNESS Employee v. ALASKA MECHANICAL INC. Employer and ZURICH AMERICAN INSURANCE CO. Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0013. NATHANAEL W. HARKNESS Employee v. ALASKA MECHANICAL INC. Employer and ZURICH AMERICAN INSURANCE CO. Insurer Defendants Alaska Workers' Compensation Appeals Commission NATHANAEL W. HARKNESS, Employee, Applicant v. ALASKA MECHANICAL, INC., Employer, and ZURICH AMERICAN INSURANCE CO., Insurer, Defendants.AWCB Decision No. 12-0013Filed with AWCB Fairbanks, Alaska on January 13, 2012AWCB Case No. 200420003INTERLOCUTORY DECISION AND ORDERAlaska Mechanical, Inc.'s (Employer) December 18, 2009 petition to dismiss Nathanael Harkness' (Employee) workers' compensation claim (WCC) pursuant to AS 23.30.105(a) and AS 23.30.110(c) was heard in Fairbanks, Alaska on August 18, 2011. Attorney Robert Beconovich entered a limited appearance on Employee's behalf for the sole purpose of representing him at hearing. Attorney Rebecca Holdiman Miller appeared on behalf of Employer and its insurer. Employee and Michael Wenstrup testified for Employee. The record closed after final deliberations on December 13, 2011. ISSUES Employer contends Employee's WCC is time-barred as a matter of law because he failed to file his claim within two years of the date of the last payment of benefits as required by AS 23.30.105(a). Employer contends, since it paid compensation until December 20, 2004, Employee's WCC of June 8, 2007 was untimely filed under §105(a). Employer further contends Employee's WCC is time-barred as a matter of law because he failed to request a hearing within two years following Employer's post-claim controversion as required by AS 23.30.110(c). Employer contends since it served its first post-claim controversion on July 26, 2007, Employee was required to request a hearing under §110(c) no later than July 26, 2009, and did not do so. Employer contends any suggestion Employee is mentally incompetent is irrelevant because Employee was attending doctor's appointments, hiring and firing an attorney, and filing his own pleadings. Employee contends dismissal is improper because there was an agreement between the parties to perform a second independent medical examination (SIME), which has not yet been performed. Employee further contends his handwritten November 27, 2009 filing is the equivalent of a hearing request and that document, along with the prehearing conference summaries, demonstrate substantial compliance with the statute. Additionally, Employee contends his traumatic brain injury causes him significant cognitive problems that preclude dismissal. 1) Should Employee's claim be dismissed under AS 23.30.105? 2) Should Employee's June 8, 2007 claim be heard under AS 23.30.110(c), where Employee filed his claim and subsequently filed an affidavit of readiness for hearing on his claim before the claim was controverted? 3) If Employee was required to refile his affidavit of readiness, is there any legal basis to excuse his failure to refile it? FINDINGS OF FACT A review of the entire record established the following relevant facts and conclusions by a preponderance of the evidence: 1) On November 2, 2004, Employee worked for Employer as a carpenter, and while he was lofting a large tent on the Fairbanks train station roof, a wind gust caught the tent and dislodged a 16 foot 2x4 that fell and struck Employee on the back of his neck. (Report of Injury, November 8, 2004). 2) On November 10, 2004, complaining of neck pain, Employee began treating with Peter Marshall, M.D. Initially, medication was prescribed and Employee was placed on light duty for one week. (Marshall report, November 10, 2004). 3) On November 18, 2004, Dr. Marshall ordered Employee off work for a week. (Marshall report, November 18, 2004). 4) Employee's symptoms worsened, and Employee's time off work was extended until December 13, 2004. (Marshall report, November 20, 2004). 5) On December 17, 2004, concerned he might be missing a latent condition, Dr. Marshall referred Employee to John Joosse, M.D., for an orthopedic consultation. (Marshall report, December 17, 2004). 6) On December 20, 2004, Employee reported to Dr. Joosse he was doing better since seeing Dr. Marshall, but his neck "makes sounds" and gets worse when he does lifting. Dr. Joosse lifted Employee's work restrictions. (Joosse report, December 20, 2004). 7) Employer paid Employee Temporary Total Disability (TTD) benefits from November 19, 2004, to December 20, 2004. (Compensation Report, January 3, 2005). 8) On June 4, 2007, Employee filed a reemployment benefits eligibility request wherein he stated:

Just today I found out about this benefit. Aprox [sic] 2 years ago my original Dr. (Dr. Marshall) told me these things heal in time, give it sometime [sic]. Workers comp also told me to give it sometime [sic]. I have done my best up until now to renter [sic] the workforce as a carpenter / field of construction. I have been unsuccelful [sic]. I am no longer safely able to work as a carpenter, or truck driver.

Request for Eligibility Determination for Reemployment Benefits, June 4, 2007.

9) On June 8, 2007, Employee filed his WCC, claiming TTD, permanent partial impairment (PPI), medical costs, transportation costs, penalty, interest, and an SIME. In describing his injuries, Employee stated he had "brain damage" diagnosed by David Beal, M.D. (WCC, June 8, 2007). 10) On July 19, 2007, Employee filed an Affidavit of Readiness for Hearing (ARH) for his June 8, 2007 WCC. (Affidavit of Readiness for Hearing, July 17, 2007). 11) On July 26, 2007, Employer first controverted Employee's June 8, 2007 claim. (Controversion Notice, July 26, 2007). 12) No "affidavit in opposition" was ever filed in response to Employee's July 19, 2007 ARH. (Record). 13) No hearing was ever scheduled within 60 days as a result of Employee's unopposed July 19, 2007 ARH. (Id.). 14) Sixty days from July 19, 2007, is September 17, 2007. (Observations). 15) Between July 19, 2007, and September 17, 2007 there were seven hearing days on the master calendar available for a hearing on the trailing calendar in the Fairbanks venue: July 26, August 2, August 14, August 16, August 30, September 12, and September 13, 2007. (Alaska Division of Worker's Compensation computerized master hearing calendar). 16) On October 17, 2007, attorney Wenstrup had not yet entered an appearance for Employee, and Employee was unrepresented from the date of his injury until September 18, 2007. (Record). 17) On September 17, 2007, the parties and attorney Michael Wenstrup attended a prehearing conference. Mr. Wenstrup reported he would be filing an entry of appearance, and withdrew Employee's July 19, 2007 ARH on his June 8, 2007 WCC. (Prehearing Conference Summary, September 17, 2007). 18) On September 18, 2007, attorney Wenstrup filed an Entry of Appearance on Employee's behalf. (Entry of Appearance, September 17, 2007). 19) On October 17, 2007, the parties at a prehearing conference "agreed that there appears to be a dispute that warrants an SIME and that EE's counsel will initiate the SIME form and serve it on ER's attorney. Once the SIME form is filed with the Board, a follow-up PHC will be scheduled." (Prehearing Conference Summary, October 17, 2007). 20) On October 17, 2007, counsel for Employer, and Employee attended a second prehearing conference. Employee's counsel did not attend, but sent his paralegal. At that conference "[t]he parties agreed that there appears to be a dispute that warrants an SIME and that EE's counsel will initiate the SIME form and serve it on ER's attorney. Once the SIME form is filed with the Board, a follow-up PHC will be scheduled." The prehearing conference summary notes "ARH (withdrawn by EE's counsel)." (Prehearing Conference Summary, October 17, 2007). 21) On November 17, 2007, Employee testified he went to California between December 2004 and September 2006 (Harkness Dep. at 13). In 2005, while in California, he tried to work as an estimator, production manager, and carpenter. (Id. at 16-17, 26). However, Employee could not perform the work of an estimator and production manager because he had a hard time with dates, and was fired from those jobs. (Harkness). Employee could not perform the work of a carpenter because of neck pain. (Id.). 22) Upon returning to Alaska from California, Employee attended a six-week truck driving training program in Anchorage but could not work as a truck driver because his neck would get sore and make him dizzy, and he could not control a motorized vehicle. (Id. at 12; 14-15). 23) Employee treated with Peter Marshall, M.D., who referred him to a neurologist, James Froelsch, M.D., when Dr. Marshall "didn't know what to do for him." (Id. at 41). Dr. Froelsch then referred him to Michel Gevaert, M.D. (Id. at 42-48). Dr. Gevaert subsequently referred him to David Beal, M.D. (Id. at 48). 24) On March 13, 2007, Dr. Beal diagnosed Employee with a possible left perilymphatic fistula, and recommended surgical repair. (Beal report, March 13, 2007). 25) On January 2, 2008, Employer filed and served a second post-claim controversion based on Employee's failure to return a medical release. (Notice of Controversion, January 2, 2008). 26) On January 2, 2009, Employer filed and served a third post-claim controversion based on Employee's failure to return a medical release. (Notice of Controversion, January 2, 2009). 27) On November 27, 2009, Employee filed a handwritten document that the board treated as a withdrawal of attorney. It reads, in relevant part: ...