12-0040. 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
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0040. 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 Case No. 200522520Filed with AWCB Anchorage, Alaskaon March 2, 2012AWCB Decision No. 12-0040DECISION AND ORDER ON MODIFICATION and INTERLOCUTORY DECISION AND ORDERChugach Support Services' (Employer) oral, February 29, 2012 petition for modification of Wariner v. Chugach Support Services, AWCB Decision No. 12-0035 (February 28, 2010) (Wariner IV) and Wade Wariner's (Employee) oral, February 29, 2012 request for an order for a second independent medical evaluation (SIME) were heard on February 29, 2012, in Anchorage, Alaska. Attorney Chancy Croft appeared and represented Employee. Attorney Vicki Paddock appeared and represented Employer and its workers' compensation insurance carrier. There were no witnesses. The record closed on February 29, 2012. The sole issue for the February 29, 2012 hearing was to be "whether the SIME should proceed before the D and O from the last hearing is issued" (Prehearing Conference Summary, February 8, 2012). However, at hearing the parties raised two new issues not included in the controlling February 8, 2012 Prehearing Conference Summary. 8 AAC 45.070(g). At the designated chairman's inquiry at the February 29, 2012 hearing, the parties waived their right to notice under Simon v. Alaska Wood Products, 633 P.2d 252 (Alaska 1981) and Hope v. Alcan Electric, AWCAC Decision No. 112 (July 1, 2009) that these issues would be heard and decided. 8 AAC 45.050(f). Given the parties' express, notice waiver and to ensure the quick, efficient, fair, and predictable delivery of benefits to Employee, if appropriate, at a reasonable cost to Employer, to make process and procedure as summary and simple as possible, and to best ascertain the parties' rights, this decision addresses Employer's oral request for modification of Wariner IV, and Employee's request for an order moving the SIME process forward. AS 23.30.001(1); AS 23.30.005(h); AS 23.30.095(k); AS 23.30.130(a); AS 23.30.135(a). SUMMARY OF DECISIONS Wariner v. Chugach Support Services, Inc., AWCB Decision No. 09-0158 (October 13, 2009), (Wariner I) addressed Employer's March 13, 2009 petition to compel discovery or, in the alternative, to dismiss Employee's 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). Wariner v. Chugach Support Services, AWCB Decision No. 12-0035 (February 28, 2012) (Wariner IV) declined to dismiss Employee's June 12, 2006 claim because it found Employee had requested an SIME from at least as early as July 26, 2006, and was in the SIME process thereafter. Aune v. Eastwood, Inc., AWCB Decision No. 01-0259 (December 19, 2009). Wariner IV also held the parties' July 6, 2010 stipulation for an SIME related back to Employee's June 12, 2006 claim, thus placing Employee's case in the SIME process from the claim's inception. Lastly, Wariner IV concluded the division failed to meet its duty to advise Employee how to perfect his claim and, given the uncertainty surrounding the pending SIME, failed to inform him of a specific date by which he had to file an Affidavit of Readiness for Hearing to avoid claim dismissal, until long after the time had arguably expired. Richard v. Fireman's Fund, 384 P.2d 445 (Alaska 1963); Bohlmann v. Alaska Construction and Engineering, 205 P.2d 316 (Alaska 2009). ISSUES Employer contends Wariner IV made a mistake in its determination of fact under AS 23.30.130(a) by stating in Finding of Fact 48 Employer had stipulated to using Thomas Gritzka, M.D., for the SIME. It contends a subsequent letter to the prehearing designee corrected this error and clarified Employer did not stipulate to Dr. Gritzka's appointment as SIME physician. Employer seeks an order modifying Wariner IV to correct this error and contends the SIME process should proceed but the SIME physician should be selected through the normal selection process. Employee contends nothing in the law prohibits a designee from making a specific assignment to a particular SIME physician, but acknowledges Employer's clarifying letter. Nevertheless, Employee is not as concerned with who does the SIME, as he is with it occurring promptly. 1) Shall Finding of Fact 48 in Wariner IV be modified? Employee contends he is entitled to an order for an SIME. He contends he requested an SIME over five years ago, the parties stipulated to one, but little has occurred to move the process forward, in contravention of AS 23.30.001(1), which requires quick and efficient claim processing. He requests an order for an SIME. Employer contends it may seek appellate review of Wariner IV, but in the meantime, the SIME should move forward subject to any stay which may issue from the Alaska Workers' Compensation Appeals Commission. Employer contends the SIME physician...

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