12-0026. JACOB G. KIEHN Employee v. WESTWARD SEAFOODS INC Employer and ACE AMERICAN INSURANCE COMPANY Insurer Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0026. JACOB G. KIEHN Employee v. WESTWARD SEAFOODS INC Employer and ACE AMERICAN INSURANCE COMPANY Insurer Defendants Alaska Workers' Compensation Appeals Commission JACOB G. KIEHN, Employee, Applicant v. WESTWARD SEAFOODS, INC, Employer, and ACE AMERICAN INSURANCE COMPANY, Insurer, Defendants.AWCB Decision No. 12-0026Filed with AWCB Anchorage, Alaska On February 14, 2012AWCB Case No. 201102274FINAL DECISION AND ORDER Westward Seafoods, Inc. and Ace American Insurance Company's (collectively Employer) July 20, 2011 petition to preclude Jacob Kiehn's (Employee) non-attorney representative (NAR) Scott Kiehn from the unauthorized practice of law, Employee's August 16, 2011 petition for an SIME, and Employee's petition for review of the board designee's August 25, 2011 discovery orders were heard on November 30, 2011, in Anchorage, Alaska. Attorney Jeffrey Holloway represented Employer and Scott Kiehn (NAR) represented Employee. The record closed at the hearing's conclusion on November 30, 2011. ISSUES Employer asserts Employee's NAR is engaging in the unauthorized practice of law by signing interrogatories propounded to Employee, participating in prehearings with or without Employee present, and undertaking discovery. Employer asserts the Alaska statute authorizing a NAR to present evidence at a hearing must be strictly construed to mean a NAR may only present evidence at hearing. Employer contends the NAR may not conduct discovery through either participating in depositions or answering interrogatories; nor can a NAR participate in prehearings, whether Employee is present or not. Employer further asserts a NAR may not sign discovery responses as these must be signed by Employee personally under oath. Employee contends the Alaska Workers' Compensation Act (Act) specifically provides for non-attorney representation at hearing and this statute, thereby, implicitly authorizes the NAR to do whatever is necessary to help Employee prepare for hearing. To preclude the NAR from participating in prehearings or conduct discovery would render this statute meaningless. Employee agrees in the future he will personally sign discovery responses under oath. 1) Is a non-attorney representative prohibited from undertaking activities, such as discovery, in preparation for representing Employee at hearing? 2) Is Employee's NAR engaging in the unauthorized practice of law? Employee seeks an SIME, contending such an evaluation will help the board assess the cause and need for medical treatment for Employee' hand pain. Employer asserts an SIME is premature because there is a lack of medical evidence documenting Employee's current condition and need for medical treatment. Furthermore, Employer asserts Employee has worked for other employers since the work injury and additional discovery is needed to determine if Employer has a last injurious exposure defense. Therefore, an SIME should not be ordered at this time. 3) Should an SIME be ordered at this time? Employee appeals the discovery orders by the board designee as detailed in the August 25, 2011, prehearing conference summary. He contends the board designee abused his discretion. Employer asserts the board designee properly ruled on numerous discovery petitions and his rulings should be affirmed. 4) Should the board designee's discovery orders be affirmed? FINDINGS OF FACT A review of the entire record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) Employee was injured on January 24, 2011, while working for Employer, when Employee developed loss feeling and pain in his hands from working for an extended period of time moving fish baskets to the packing line (February 28, 2011Workers' Compensation Claim (WCC)). 2) Employee was 20 years of age at the time of injury. (Id.). 3) On January 31, 2011, Employee saw John M. Koller, M.D., Kodiak Island Ambulatory Care Clinic, with complaints of pain in forearms and hands. Employee was beginning to lose grip strength and experienced numbness in his first, middle, and third finger. Dr. Koller's assessment was carpal tunnel syndrome. Employee was given a splint to wear and taken off work for three days. Dr. Koller recommend nerve conduction studies (NCS) if the problem persisted (January 31, 2011, Koller chart note). 4) On February 3, 2011, Dr. Koller diagnosed tenosynovitis and possible carpal tunnel syndrome from Employee's redundant activity and lifting boxes with his wrists. Dr. Koller noted partial positive Tinel and Phalen signs (tests for carpal tunnel syndrome) with definite tingling in the medial nerve distribution on the right. Employee was fitted with a new cock-up straight splint to wear at all times. Dr. Koller took Employee off work for seven days (February 3, 2011, Koller chart note; February 3, 2011, Return to Work/School Release). 5) On February 10, 2011, Employee saw Dr. Koller again for bilateral wrist pain. Employee was wearing the wrist splint which was helping. Dr. Koller reiterated his diagnosis and stated Employee's tenosynovitis and back issues were related to his work for Employer (February 10, 2011, Koller chart note). 6) On March 3, 2011, W. Scott Kiehn filed his appearance as a NAR on behalf of Employee, his son (record; Ex.1, Employer's hearing brief, filed October 5, 2011). 7) On March 3, 2011, Employee filed a WCC seeking temporary partial disability from January 24, 2011, and ongoing, medical benefits, transportation costs, penalty, and interest (WCC dated February 28, 2011, filed March 3, 2011). 8) On May 3, 2011, Employee saw Morris Button, M.D., for an EME. His assessment was Employee's upper extremities were normal upon examination. Dr. Button noted Employee did not have an NCS as recommended by Dr. Koller. Dr. Button opined Employee had no objective abnormal findings and no indication of tendonitis or compression neuropathy. Employee had reached medical stability by mid-March 2011, and was able to return to his work at time of injury, seafood processor. Employee had no physical restrictions for any work activities (May 3, 2011 Button EME report). 9) On July 20, 2011, Employer filed its Petition to strike all pleadings and discovery requests authored/tendered by Employee's NAR on behalf of Employee, asserting the NAR was engaging in the unauthorized practice of law (record; Ex. 16, Employer's hearing brief, filed October 5, 2011). 10) On August 25, 2011, the board designee made the following discovery orders:

ER's 5/13/2011 petition for a protective order had been held until today because the Board did not have a copy of the underlying discovery request at the last prehearing. A copy of EE's 4/29/2011 letter has since been filed. The petition states that ER provided partial responses, and the designee asked Mr. Holloway to clarify what had been produced and what the objections were. Mr. Holloway said that ER had produced the written statement that EE had signed and EE's employment file. He pointed out that to the extent the request asks for statements, records, files, videos, and contracts without some limitation or identification, the request was overbroad. He argued the request to identify persons that would testify is premature, as no hearing, or hearing deadlines have been set. And lastly, to the extent the letter implies any action by ER was discriminatory, ER denies any discrimination.

Mr. Kiehn explained that EE had written out a statement which was re-written by ER personnel and then signed by EE. He is seeking the original statement. Mr. Holloway stated that he had produced the only statement ER had.

While EE is entitled to request evidence relevant to the case, as written the requests are so broad that ER would essentially have to guess as to whether something should be included or not. The designee granted ER's 5/13/2011 petition.

The designee takes this opportunity to explain that Workers' Comp. is a no-fault system. The Board only has limited jurisdiction. It can determine whether work caused an employee's injuries and determine what benefits the employee may be entitled to. For the most part, whether the employer, other employees, or the employee were at fault makes no difference. Whether one party may have engaged in other bad acts, such discrimination, typically makes no difference. The sole exception is that if the Board determines fraud occurred in connection with workers' comp. benefits, it can refer the matter for prosecution in the courts.

EE's 7/5/2011 petition to review ER's defenses. The designee explained that this was a matter for hearing and he could not address it at a prehearing. ER's defenses are usually evaluated at the same time EE's case is presented. The designee made no ruling on EE's 7/5/2011 petition to review ER's defenses; EE may raise the issue at the hearing on the merits of EE's claim.

EE's 7/5/2011 petition to compel and ER's 7/20/2011 petition for protective order both concern EE's 6/21/2011 discovery requests and can be considered together. In discussing the individual requests, Mr. Kiehn explained that he had learned more about the discovery process, and he would withdraw the 6/21/2011 requests, revise them, and re-send them. As the discovery requests have been withdrawn, both EE's 7/5/2011 petition to compel and ER's 7/20/2011 petition for protective order are moot.

EE's 7/9/2011 petition requesting a prehearing. This prehearing was

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