12-0048. BRUCE BROWN Employee v. ASRC ENERGY SERVICES INC. Employer and ASRC Service Center Adjuster Defendants.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0048. BRUCE BROWN Employee v. ASRC ENERGY SERVICES INC. Employer and ASRC Service Center Adjuster Defendants ALASKA WORKERS' COMPENSATION BOARD BRUCE BROWN, Employee, Applicant, v. ASRC ENERGY SERVICES, INC., Employer, and ASRC Service Center, Adjuster, Defendants. AWCB Decision No. 12-0048Filed with AWCB Fairbanks, Alaska on March 8, 2012AWCB Case No. 200820295INTERLOCUTORY DECISION AND ORDER ASRC Energy Services and ASRC Service Center's (Employer) October 10, 2011 Petition to Dismiss Bruce Brown's (Employee) December 20, 2010 workers' compensation claim (WCC) was heard on February 16, 2012, in Fairbanks, Alaska. Vicki Paddock represented Employer and appeared by telephone. Employee represented himself and appeared and testified by telephone. The record closed at the hearing's conclusion on February 16, 2012. ISSUES Employer contends Employee has refused to comply with the board designee's August 8, 2011 order requiring him to sign and return releases to Employer and contact Employer to arrange to have his deposition taken. Employer contends it has "gone above and beyond" to ensure Employee receives the releases, and requests a decision ordering Employee to sign the releases and appear for his deposition, and warning Employee sanctions may be imposed if he fails to comply. Employee apologized for failing to sign and return the releases and admitted he had "mailing issues" and "didn't get my mail promptly." When asked if he had received the releases or his deposition notice, he indicated he "didn't think so." 1) Shall Employee's December 20, 2010 WCC be dismissed for his failure to sign and return releases to Employer, and for failing to attend his properly noticed deposition? 2) What is an appropriate remedy? FINDINGS OF FACT 1) On December 25, 2008, Employee experienced breathing problems while working as a mechanic for Employer at Northstar Island and was medivaced to Anchorage for treatment. Upon arrival at Providence Hospital, Employee was coughing up blood and was admitted and intubated. (Report of Occupational Injury or Illness, undated). 2) On January 5, 2011, Employee filed a WCC seeking temporary total disability (TTD) benefits from December 25, 2008 through "about April 09," permanent partial impairment (PPI) benefits, medical costs, transportation costs, compensation rate adjustment, penalty, interest, a finding of unfair or frivolous controversion, and attorney's fees and costs. Employee indicated on his claim form he was diagnosed with "E. Coli and Influenza A" and suffered respiratory failure and septic shock. He was in a coma for approximately 3-4 weeks and hospitalized for four months. (WCC, December 20, 2010). 3) Employee listed his mailing address as "127 Hillcrest Ave., Soldotna, AK 99669." (WCC, December 20, 2010). 4) On January 25, 6011, Employer filed an Answer and Controversion Notice based on a lack of medical evidence linking Employee's illness to his work for Employer. (Answer and Controversion Notice, January 25, 2011). 5) On February 10, 2011, Employer mailed various releases of information to Employee via certified mail to his Soldotna address. (R. Bredesen letter to Employee, February 10, 2011). 6) On March 2, 2011, Employer mailed a second set of releases to Employee via first class mail to his Soldotna address. (R. Bredesen letter to Employee, March 2, 2011). 7) On March 25, 2011, Employer filed a Controversion Notice denying all benefits based on Employee's failure to sign releases and a Petition to Compel Employee to sign the releases. (Controversion Notice, Petition to Compel, March 23, 2011). 8) On June 1, 2011, the parties attended a prehearing conference (PHC). The PHC summary reflects the following discussion:
ER inquired about EE's treating doctor. EE could not remember. Maybe it was "Anderson." ER stated he will send EE a transportation worksheet for EE to complete, and suggested that the worksheet will also facilitate the retrieval of medical records. The parties agreed that a compensation rate has never been determined. ER inquired as to EE's medical insurer. EE could not remember. ER inquired about copies of medical bills. EE stated that he has had to move in with his sister, and he doesn't have access to any of his documents. EE doesn't know when he might be unpacked. ER reminded EE to keep the board informed of his address. ER then inquired about attorney fees and costs. EE stated that he hasn't paid anything yet out of pocket. ER then advised EE of the $300 out of pocket maximum, and of provisions for ER paying fees for the services of EE's attorney. ER inquired about obtaining signed releases since unclaimed mail had been returned to ER. EE stated that "some other lawyer had them, and he took off." ER advised EE to be on the look-out for releases in the mail. ER then confirmed EE's mailing address. EE confirmed the 127 Hillcrest Avenue is a good address for him, and that he should be there for another 30 days, at least.
Employer agreed to postpone seeking a ruling on its Petition to Compel releases until the next PHC. (PHC Summary, June 1, 2011). 9) On June 8, 2011, Employer sent Employee a notice of deposition to his Soldotna address, notifying Employee his deposition was to be taken in Kenai on July 13, 2011. (Notice of Taking Deposition, June 7, 2011). 10) In the week preceding his scheduled deposition, Employer attempted to contact Employee seven times to confirm his attendance at deposition. Employer spoke with Employee directly twice during that time period. Employee did not inform Employer he would be unable to attend his July 13, 2011 deposition. Employee notified Employer his address had changed to P. O. Box 8149, Nikiski, Alaska 99635. (Paddock; R. Bredesen Affidavit, July 18, 2011). 11) Employee did not appear for his deposition on July 13, 2011. (PHC Summary, August 8, 2011). 12) On July 20, 2011, Employer filed a petition to compel Employee to attend a properly noticed deposition and for reimbursement for missed deposition costs. (Employer Petition, July 18, 2011). 13) On August 8, 2011, a PHC was held. Employee did not attend, though the board designee attempted to contact him at his telephone number of record. The board's designee continued in Employee's absence and made the following rulings on Employer's...

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