12-0035. WADE E. WARINER, Employee, Applicant, v. CHUGACH SUPPORT SERVICES, INC., Employer, and ZURICH AMERICAN INSURANCE COMPANY And NOVAPRO RISK SOLUTIONS (f/k/a WARD NORTH AMERICA), Insurer/Adjuster, Defendants.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0035. WADE E. WARINER, Employee, Applicant, v. CHUGACH SUPPORT SERVICES, INC., Employer, and ZURICH AMERICAN INSURANCE COMPANY And NOVAPRO RISK SOLUTIONS (f/k/a WARD NORTH AMERICA), Insurer/Adjuster, Defendants WADE E. WARINER, Employee, Applicant, v. CHUGACH SUPPORT SERVICES, INC., Employer, and ZURICH AMERICAN INSURANCE COMPANY And NOVAPRO RISK SOLUTIONS (f/k/a WARD NORTH AMERICA), Insurer/Adjuster, Defendants.AWCB Decision No. 12-0035Filed with AWCB Anchorage, Alaskaon February 28, 2012AWCB Case No. 200522520INTERLOCUTORY DECISION AND ORDERChugach Support Services' (Employer) April 10, 2009 petition to dismiss Wade Wariner's (Employee) June 12, 2006 workers' compensation claim was heard on August 31, 2011, in Anchorage, Alaska. Employee's wife Jacqueline Wariner appeared and was Employee's non-attorney representative. Employee appeared and testified. Attorney Robert Bredesen appeared and represented Employer and its workers' compensation insurance carrier. The record closed on September 15, 2011, when time expired for Employee to obtain, file and serve a copy of an Affidavit of Readiness for Hearing he contended he previously filed in 2008. SUMMARY OF DECISIONS A brief review of prior decisions in this matter will help put the instant hearing in context: Wariner v. Chugach Support Services, Inc., AWCB Decision No. 09-0158 (October 13, 2009), (Wariner I) addressed Chugach Support Services, Inc.'s (Employer) March 13, 2009 petition to compel discovery or, in the alternative, to dismiss Wade Wariner's (Employee) claim under AS 23.30.108(c), and addressed Employer's March 13, 2009 petition requesting a continuance of the July 14, 2009 hearing. Wariner I ordered Employee to attend a deposition on August 21, 2009, granted Employee's request for a protective order on mental health records, ordered Employee to sign and deliver appropriately modified releases and denied Employer's petition to dismiss under AS 23.30.108(c). Wariner v. Chugach Support Services, Inc., AWCB Decision No. 09-0169 (November 10, 2009) (Wariner II) granted reconsideration of Wariner I on Employer's motion for limited reconsideration of mental health and employment records release issues and directed a prehearing conference be set for oral argument on Employer's petition. Employer contended Employee placed his mental health at issue; Employee contended any mental health releases should be limited in time. Wariner v. Chugach Support Services, Inc., AWCB Decision No. 10-075 (April 29, 2010) (Wariner III) addressed these mental health and employment records release issues and ordered Employee to sign the proposed mental health releases with a limitation of 1969 to present; ordered Employee to sign an employment records release for records from 1995 to present; and ordered a prehearing conference to address Employee's continuing request for a second independent medical evaluation (SIME). ISSUE Employer contends it controverted Employee's June 12, 2006 workers' compensation claim, he did not file and serve an Affidavit of Readiness for Hearing within two years of the controversion date, and consequently his claim should be dismissed under AS 23.30.110(c). Employee contends he is certain he filed a timely Affidavit of Readiness for Hearing on the advice of former Board staff member Janet Bailey just a few days before the deadline, as it was explained to him, was to run out. Employee contends he filed his Affidavit of Readiness perhaps in early July 2008, but alternately contends he certainly filed it several days before the deadline. He seeks an order denying Employer's petition to dismiss. Shall Employee's June 12, 2006 claim be dismissed under AS 23.30.110(c)? FINDINGS OF FACT A review of the entire administrative record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) On July 15, 2005, Employee was injured while at work for employer when he fell onto a piece of pipe and twisted his back while working in King Salmon (Report of Injury, July 19, 2005). 2) On October 14, 2005, James Eule, M.D., of Orthopedic Physicians of Anchorage (OPA) evaluated Employee and noted he was asymptomatic prior to his work injury, and had been off work for three weeks without significant improvement. Dr. Eule also recorded Employee's idiopathic scoliosis but was unable to pinpoint a cause for his right leg symptoms. Dr. Eule also noted Employee was totally disabled and scheduled for reevaluation on December 15, 2005. He prescribed physical therapy (chart note, J. Eule, October 14, 2005). 3) On October 31, 2005, Amber Lawton, claims adjuster for Ward Strategic Claims Solutions, sent a letter to Dr. Eule inquiring: (1) whether the work injury was a substantial factor; (2) whether Employee had a preexisting condition; (3) if so, was it aggravated, accelerated, or exacerbated by the work injury; (4) if so was it temporary or permanent; (5) whether Employee had reached pre-injury status; (6) if not, when would he reach pre-injury status; and (7) seeking recommendations for treatment (letter from A. Lawton to J. Eule, October 31, 2005). 4) On November 8, 2005, Dr. Eule replied stating: (1) the work injury was a substantial factor; (2) the employee had a preexisting condition; (3) it was aggravated, accelerated or exacerbated by the work injury; (4) but whether it was temporary or permanent was to be determined; (5) Employee had not reached pre-injury status; (6) but was expected to in six to twelve weeks; and (7) prescribed physical therapy as treatment (handwritten responses added by Dr. Eule, November 8, 2005). 5) On June 12, 2006, Employee filed a workers' compensation claim seeking temporary total disability (TTD) from September 24, 2005, to "current," transportation costs of $1,650.37, and a compensation rate adjustment to $1,309.16 per week (claim, June 12, 2006). 6) On June 21, 2006, Marilyn Yodlowski, M.D., evaluated Employee for an employer's medical evaluation (EME). Dr. Yodlowski noted Employee stated he "threw his back out from heavy lifting" in 1971. Dr. Yodlowski opined Employee had a significant preexisting thoracolumbar scoliosis, and diffuse degenerative changes throughout the thoracic and lumbosacral spine. She further stated there was no indication Employee's chest wall contusion from his fall at work in any way accelerated, exacerbated or aggravated preexisting scoliosis or degenerative spine disease. Dr. Yodlowski stated the work injury was not a substantial factor in his current treatment, and his chest wall contusion would have completely resolved in three months from the date of injury. She also maintained the fall at work had no effect on progression of Employee's preexisting scoliosis and degenerative disc disease, any treatment past three months after the injury date was related to preexisting conditions and not the work injury, and Employee was medically stable, with no ratable impairment from the work injury (EME report, Dr. Yodlowski, June 21, 2006). 7) As of June 21, 2006, there were significant medical disputes between attending physician Dr. Eule and EME Dr. Yodlowski (observations). 8) On or about June 30, 2006, Employer filed an answer admitting medical cost reimbursement of $63.20 and transportation costs in the amount of $805.26, and denying TTD, medical costs for Alaska Club membership, and any compensation rate adjustment (Answer, June 30, 2006). 9) On July 26, 2006, Employer filed and served by mail both sides of a completed controversion on a form prescribed by the board, which stated in relevant part: 15. Specific Benefits Controverted (Denied) All benefits after 06/21/2006 16. Reason -- Specific Benefits Controverted (Denied) Per IME report by Dr. Yodlowski on 06/21/2006, 'work injury is no longer a substantial factor in his current treatment or recommendation for additional treatment.' TIME LIMITS . . . 2. When must you request a hearing (Affidavit of Readiness for Hearing form)? IF the insurer/employer filed this controversion notice after you filed a claim, you must request a hearing before the AWCB within two years after the date the insurer/employer filed this controversion notice. You will lose your right to the benefits denied on the front of this form if you do not request a hearing within the two years. IF YOU ARE UNSURE WHETHER IT IS TOO LATE TO FILE A CLAIM OR REQUEST A HEARING, CONTACT THE NEAREST AWCB OFFICE. . . . Controversion Notice, July 24, 2006. 10) On July 26, 2006, the parties appeared at a prehearing conference at which Employee's claim was set forth by specific issues. The parties agreed the transportation issue was resolved and there "is no issue" regarding transportation costs. The parties discussed Employee's rate adjustment claim and agreed to "cooperate and communicate" to resolve this issue; if it could not be resolved, the parties were to appear in 14 days for a follow up prehearing conference to discuss the matter further. The adjuster requested a new copy of an Alaska Club invoice, which Employee had already paid, as the copy she had was illegible. The parties and Board designee discussed Employer's controversion based upon Dr. Yodlowski's EME report and Employee was to seek an opinion from Dr. Eule his attending physician about the EME report. The designee "explained the SIME process to Mr. Wariner." Lastly, the summary from this prehearing conference states:

Mr. Wariner is reminded that, if a

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