12-0065. KATHI L. ANDREASSEN Employee Respondant v. FAIRBANKS NORTH STAR BOROUGH SCHOOL DISTRICT Employer and FAIRBANKS NORTH STAR BOROUGH and SD Insurer Petitioners.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0065. KATHI L. ANDREASSEN Employee Respondant v. FAIRBANKS NORTH STAR BOROUGH SCHOOL DISTRICT Employer and FAIRBANKS NORTH STAR BOROUGH and SD Insurer Petitioners ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512KATHI L. ANDREASSEN, Employee, Respondant v. FAIRBANKS NORTH STAR BOROUGH SCHOOL DISTRICT, Employer, and FAIRBANKS, NORTH STAR BOROUGH and SD, Insurer, Petitioners.AWCB Decision No. 12-0065Filed with AWCB Fairbanks, Alaska on April 19, 2012AWCB Case No(s). 200321624INTERLOCUTORY DECISION AND ORDERFairbanks North Star Borough's (Employer) July 29, 2011 petition to dismiss Kathi Andreassen's (Employee) April 6, 2011 workers' compensation claim was heard before a two-member panel in Fairbanks, Alaska on February 16, 2012. Attorney Robert Beconovich appeared and represented Employee. Attorney Jill Dolan appeared and represented Employer. There were no witnesses. The record closed at the hearing's conclusion on February 16, 2012. ISSUE Employer contends Employee filed her April 6, 2011 claim one week before the hearing on Employer's petition to dismiss Employee's February 29, 2008 claim. Employer contends its answer to Employee's 2011 claim was not yet due, and it was not afforded an opportunity to argue the issue of whether a dismissal of Employee's 2008 claim would also be operative against her 2011 claim. Employer contends the issue it presents here was not ripe for adjudication on April 14, 2011, and references to Employee's April 6, 2011 claim in Andreassen v. Fairbanks North Star Borough School District, AWCB Decision No. 11-0099 (July 14, 2011)(Andreassen I) are dicta. Employee contends Andreassen I decided the issues arising from her April 6, 2011 claim, and contends Employer is trying to re-litigate a decided matter. Employee contends the "law of the case" applies, and the issues Employer presents here have been settled. 1) Did Andreassen I, which dismissed Employee's February 29, 2008 claim, resolve the issue of claim preclusion for her April 6, 2011 claim? Employer contends Employee's April 6, 2011 claim relates back to her February 29, 2008 claim under 8 AAC 45.050(e), and therefore, Employee's 2011 claim should be dismissed, as well. Employer contends Employee's 2011 claim is based on the same injury as her 2008 claim, and the injury's nature, theory, and facts are the same for both claims. Employer contends, under University of Alaska Fairbanks v. Hogenson, AWCAC Decision No. 074 (February 28, 2008), the dismissal of Employee's 2008 claim operates to dismiss with prejudice Employee's 2011 claim and the 2011 claim violates the claim splitting prohibition. Employer contends this case is distinguishable from Bailey v. Texas Instruments, 111 P.3d 321 (Alaska 2005) because the cases involve different types of controversions. Here, Employer contends it issued a "complete controversion" because it controverted the compensability of the underlying injury in Employee's claim on the basis of causation, which is distinguishable from the controversion in Bailey. Based upon this theory, Employer contends Employee's 2011 claim should also be dismissed because Employee's 2008 claim was dismissed. Employee contends Hogenson is not the "real authority" here because "relation back" is a civil concept found under Alaska Civ. R. 15(c), and Employer's arguments with respect to 8 AAC 45.050(e) are "misdirection." Employee contends her primary objective is to preserve her ability to have back surgery. Employee contends Bailey revived serial benefits in that case for 25 years and is the controlling authority in this case. Therefore, Employee contends Employer has an obligation to provide ongoing medical benefits for Employee and Employer's petition should not be granted. 2) Are benefits claimed by Employee's April 6, 2011 claim barred by operation of AS 23.30.110(c)? If so, which ones? FINDINGS OF FACT 1) On November 11, 2003, Employee presented to Donald Ives, M.D. of the Tanana Valley Clinic and reported a two-week history of back pain radiating in to her right leg. Employee denied any trauma or fall. Dr. Ives assessed low back pain with muscle spasm, etiology unclear. (Ives report, November 11, 2003). 2) Dr. Ives referred Employee to Clay Triplehorn, D.O. for an acupuncture consultation. (Triplehorn report, November 13, 2003). 3) On November 17, 2003, a magnetic resonance imaging (MRI) study was performed on Employee's lumbar spine. Small annular tears at L2-L3 and L5-S1 without evidence of lumbar disc herniation or central spinal stenosis were noted, along with facet arthropathy at L5-S1 without evidence of foraminal stenosis. (MRI report, November 17, 2003). 4) Following the MRI, Employee continued acupuncture treatments with Dr. Triplehorn. (Triplehorn reports; November 26, 2003; December 5, 2003; and December 12, 2003). 5) On December 18, 2003, Employee reportedly injured her back while working as a kitchen manager for Employer (Report of Occupational Injury or Illness, December 18, 2003). 6) Employer paid initial temporary total disability (TTD) compensation to Employee. (Compensation Reports, January 19, 2004; and March 1, 2004). 7) From January 2004 until Employer's controversion in January 2008, Employee continued to treat for her spinal complaints with Dr. Ives as her family practitioner. (Ives reports, January 8, 2004; January 16, 2004; January 27, 2004; February 11, 2004; February 19, 2004; February 23, 2005; March 4, 2005; May 2, 2005; August 26, 2005; December 6, 2005; and September 28, 2006). 8) Following her reported injury, Employee also briefly...

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