12-0045. GERONIMO LIMAS-LOZANO Employee v. ICICLE SEAFOODS INC. Employer and SEABRIGHT INSURANCE CO. Insurer Defendants.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0045. GERONIMO LIMAS-LOZANO Employee v. ICICLE SEAFOODS INC. Employer and SEABRIGHT INSURANCE CO. Insurer Defendants ALASKA WORKERS' COMPENSATION BOARD GERONIMO LIMAS-LOZANO, Employee, Applicant, v. ICICLE SEAFOODS, INC., Employer, and SEABRIGHT INSURANCE CO., Insurer, Defendants.AWCB Decision No. 12-0045 Filed with AWCB Anchorage, Alaskaon March 7, 2012AWCB Case No. 199729520FINAL DECISION AND ORDERGeronimo Limas-Lozano's (Employee) January 25, 2011 Petition requesting a continuance of the February 8, 2012 hearing, and Icicle Seafoods' (Employer) November 10, 2011 Petition requesting dismissal of Employee's claims were heard on February 8, 2012, in Anchorage, Alaska. Employee appeared by telephone, represented himself and testified. Attorney Nina Mitchell appeared by telephone, and represented Employer and its workers' compensation insurer. The record closed at the hearing's conclusion on February 8, 2012. After the February 8, 2012 hearing had been set, Employee filed his Petition seeking a hearing continuance. Thus, though not an issue set for hearing on February 8, 2012, Employee's continuance request necessarily had to be decided before the issue set for hearing could be addressed. The panel orally denied Employee's requested continuance. This decision examines the oral order, memorializes it and decides Employer's Petition to dismiss. ISSUES Employee contended the hearing should be continued because he was in the process of obtaining an attorney and had an appointment to meet with one the day following the hearing. He contended failure to grant a continuance could lead to irreparable harm to him if he were to appear at a hearing unrepresented. Employee contended mental health issues arising from his work-related injury were responsible for his inability to think straight or obtain an attorney sooner. Employer contended Employee's last-minute attempt to retain an attorney for hearing did not constitute "good cause" for a hearing continuance under applicable regulations. It contended his mental health allegations were not supported by medical records. Accordingly, Employer contends Employee has not exercised due diligence, and the hearing should not be continued as Employee has failed to demonstrate good cause for continuance and has had plenty of time to obtain counsel. 1) Was the oral order denying Employee's petition for a continuance correct? Employer contends Employee's July 30, 2003 workers' compensation claim should be dismissed because Employer controverted the claim on the prescribed form, and Employee failed to take any action to request a hearing within two years of the date Employer controverted. Accordingly, Employer contends as Employee provided no other justification for not timely requesting a hearing, his claims should be dismissed. Employee contends he does not recall ever receiving any advice about the applicable statute requiring him to request a hearing on his claim within two years of it being controverted. He further contends he was unaware of the requirement and, because of his work-related injury and resultant mental health issues, was mentally incapable of either finding attorney to represent him, or taking necessary steps to perfect his claim. He contends his claim should not be dismissed. 2) Shall Employee's July 30, 2003 claim be dismissed under AS 23.30.110(c)? FINDINGS OF FACT Evaluation of the hearing record as a whole establishes the following relevant facts and factual conclusions by a preponderance of the evidence: 1) Employee claims on July 2, 1997, he was sleeping in his bunk on a ship when, in the early morning hours another ship hit his vessel head on. Employee claims the collision knocked him off his top bunk onto the floor, where he hit his head, neck, and back on the floor and lower bunk. Employee maintains he promptly reported the injury to his supervisor and to the ship's nurse (handwritten note, April 6, 1998; Limas-Lozano). 2) On April 13, 1998, the board received a copy of an injury report for the July 2, 1997 injury, which Employee signed on April 6, 1998, and Employer's Safety Director signed on April 10, 1998 (Report of Occupational Injury or Illness, April 6, 1998). 3) On January 16, 2002, Employee walked into the Anchorage Division offices, spoke to a staff member, said he'd had a hearing, which the staff member inferred must have been a maritime hearing, and had a lawyer in Seattle. The staff member advised Employee of the "statutes of limitations," and gave him a claim form (workers' compensation computer database system, January 16, 2002). 4) On July 30, 2003, Employee filed a workers' compensation claim seeking unspecified temporary total disability, permanent total disability, medical costs, eligibility for reemployment benefits, and interest (claim, July 30, 2003). 5) On September 4, 2003, the parties attended a prehearing conference and discussed Employee's July 30, 2003 claim. At the prehearing conference, Employer raised its current defenses and the prehearing conference summary issued thereafter stated the following:
The EE is reminded that, if a controversion notice is served and filed, after the date of his workers' compensation claim, he must serve and file an affidavit, in accordance with 8 AAC 45.070, requesting a hearing within the time limits set forth by AS 23.30.110(c) to avoid possible dismissal of his claim. AS 23.30.110(c) provides: 'If the employer controverts the claim on a board-prescribed controversion notice and the employee does not request a hearing within two years following the filing of a controversion notice, the claim is denied.' Mr. Limas-Lozano was provided copies of the regulations on proceeding on a claim and a copy of an ARH [Affidavit of Readiness for Hearing] form at the prehearing (Prehearing Conference Summary, September 4, 2003).
6) On September 30, 2003, Employer filed an answer to Employee's July 30, 2003 claim denying all requested benefits and asserting its affirmative defenses (Answer to Employee's Workers' Compensation Claim, September 28, 2003). 7) On March 5, 2004, Employer filed and served by mail on Employee at his address of record both sides of a Board-prescribed Controversion Notice, which controverted all benefits, on grounds Employee's injury did not occur in the course and scope of his employment and raised defenses under AS 23.30.100, AS 23.30.105 and AS 23.30.110(c) (Controversion Notice, March 2, 2004). 8) On the reverse side of the March 2, 2004 controversion notice, is found the following: 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, March 2, 2004. 9) Employee remembers former Workers' Compensation Officer Joireen Cohen's name, but does not recall attending prehearing conferences with her present, does not recall her advising him he needed to request a hearing within a specific time, and does not recall ever receiving any prehearing conference summaries (Limas-Lozano). 10) Employee does not believe any Board staff member failed to adequately advise him, or did anything wrong that prevented him from requesting a hearing on his July 30, 2003 claim (id.). 11) On August 9, 2011, Employee filed another claim requesting permanent total disability, permanent partial impairment, medical costs, transportation costs, eligibility for reemployment benefits, and a finding of an unfair or frivolous controversion (claim, August 9, 2011). 12) On August 29, 2011, Employer filed an answer to Employee's August 9, 2011 claim, denying all benefits and raising affirmative defenses (Answer to Employee's Workers' Compensation Claim, August 26, 2011). 13) On October 5, 2011, the parties attended a prehearing conference at which the board's designee provided a copy of the division's informational pamphlet "Workers' Compensation and You," which discusses how to request a hearing and warns of consequences for failing to timely request one, a list of attorneys, and during which the parties and designee discussed generally Employee's injury and subsequent events. When asked by Employer's counsel why he had never asked for hearing on his 2003 claim, Employee responded he did not know what is required, and thought a Seattle attorney, David Teske, was representing him. Employee was again advised about the requirements set forth in AS 23.30.110(c) (Prehearing Conference Summary, October 5, 2011). 14) On November 14, 2011, Employer filed a petition to dismiss Employee's claims under AS 23.30.110(c) (Petition, November 10, 2011). 15) On December 8, 2011, Employer filed an Affidavit of Readiness for Hearing on its November 10, 2011 petition (Affidavit of Readiness for Hearing, December 7, 2011). 16) On January 19, 2012, the parties agreed to a hearing on February 8, 2012, limited to Employer's petition to dismiss (Prehearing Conference Summary, January 19, 2012). 17) At the January 19, 2012 prehearing conference, Employee did not object to the hearing being...

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