12-0067. IN THE MATTER OF THE PETITION FOR A FINDING OF THE FAILURE TO INSURE WORKERS' COMPENSATION LIABILITY AND ASSESSMENT OF A CIVIL PENALTY AGAINST LIVINGREEN SERVICES INC., Uninsured Employer, Respondent.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0067. IN THE MATTER OF THE PETITION FOR A FINDING OF THE FAILURE TO INSURE WORKERS' COMPENSATION LIABILITY AND ASSESSMENT OF A CIVIL PENALTY AGAINST LIVINGREEN SERVICES INC., Uninsured Employer, Respondent ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512 IN THE MATTER OF THE PETITION FOR A FINDING OF THE FAILURE TO INSURE WORKERS' COMPENSATION LIABILITY AND ASSESSMENT OF A CIVIL PENALTY AGAINST, LIVINGREEN SERVICES, INC., Uninsured Employer, Respondent.FINAL DECISION AND ORDER ON RECONSIDERATION and MODIFICATIONAWCB Decision No. 12-0067Filed with AWCB Anchorage, Alaska on April 4, 2012AWCB Case No. 700003672Livingreen Services, Inc.'s (Employer) March 30, 2012, petition for reconsideration, treated as a petition for reconsideration and modification of In re Livingreen Services, Inc., Alaska Workers' Comp. Bd. Dec. No. 12-0053 (March 14, 2012) (Livingreen I), was heard on the written record on April 2, 2012, in Anchorage, Alaska. Employer represented itself. The Special Investigations Unit of the Alaska Department of Labor and Workforce Development (the division), did not respond to the petition. The record closed on April 2, 2012, after deliberations. ISSUES Employer contends Livingreen I should be reconsidered because the board erred in its consideration of aggravating and mitigating factors in assessing a civil penalty, and erroneously ordered personal, joint and several liability for civil penalties. Because Employer is not represented by an attorney, its March 30, 2012 petition, although specifically requesting "reconsideration," is also treated as a petition requesting modification. Specifically, Employer's petition recites various facts, which it contends Livingreen I either failed to find or found incorrectly. Employer asks for reconsideration or modification of the penalty assessment amount in Livingreen I. The division has not responded to Employer's March 30, 2012 petition, so its position is not known. 1) Shall Livingreen I be reconsidered? 2) Shall Livingreen I be modified? FINDINGS OF FACTS A review of the entire record establishes the following facts and factual conclusions by a preponderance of the evidence: 1) On February 8, 2012, a hearing in this case was held. (Record). 2) On March 14, 2012, Livingreen I was issued and served on all parties. (Record). 3) Livingreen I's factual finding 3 stated:

On April 29, 2009, April Brehm became an officer of the corporation, serving as Vice-President, Secretary and Director. (Brehm; Gerharz; Petitioner's Hearing Evidence at Exh. 2).

4) Livingreen I's factual finding 11 stated:

Employer did not timely respond to the division's discovery request. The division filed its discovery demand on July 6, 2011, and Employer received the division's discovery demand on July 8, 2011. Employer was required to comply by August 8, 2011. Employer did not contact the division until August 9, 2011, despite the division's numerous telephone calls and emails to Employer encouraging Employer to contact the division, provide discovery or request an extension before the discovery deadline passed. The division also informed Employer of the consequences of its failure to comply by the August 8, 2011 deadline, including increased penalties. Employer did not provide the requested discovery until October 12, 2011, significantly more than 30 days after the division's demand. (Gerharz; Brehm; Uninsured Employer Investigation Summary; Petitioner's Hearing Evidence at Exh. 4).

5) Livingreen I's factual finding 12 stated:

On August 9, 2011, Employer contacted the division and requested a discovery deadline extension so its attorney could enter an appearance and address the division's petition. This request came after the deadline had already passed. The division informed Employer it would consider granting an extension if Employer's counsel filed an entry of appearance. (Gerharz; Uninsured Employer Investigation Summary; Petitioner's Hearing Evidence at Exh. 4).

6) Livingreen I's factual finding 13 stated:

On August 22, 2011, because Employer had not contacted the division since August 9, 2011, nor had its attorney entered an appearance in the case, the division informed Employer it would not grant a discovery deadline extension. (Gerharz; Uninsured Employer Investigation Summary; Petitioner's Hearing Evidence at Exh. 4).

7) Livingreen I's factual finding 20 stated:

Employer used employee labor without workers' compensation insurance from July 9, 2008 to July 11, 2008; November 14, 2008 to April 24, 2009; November 26, 2009 to June 30, 2010; and April 13, 2011 to June 1, 2011. (Gerharz; Uninsured Employer Investigation Summary; Brehm; Statement of Bill Brehm).

8) Livingreen I's factual finding 21 stated:

Employer's reasons for its failure to insure include it did not understand workers' compensation insurance was required by law (all lapses), it failed to comply with its insurance carrier's requests for audit information because the requests came during its busy summer season (July 9, 2008 to July 11, 2008 lapse), the business grew significantly in 2008 and Employer was overwhelmed and unable to keep up with its paperwork (November 14, 2008 to April 24, 2009 lapse), its insurance carrier's requests for audit information were sent to Employer at an incorrect address and Employer did not receive the requests for information until the spring (November 26, 2009 to June 30, 2010 lapse), and it did not have the money to pay the increased premium following an audit and so did not pay it; Employer disagreed with the premium calculation because it did not take into account the seasonal nature of the business. (April 13, 2011 to June 1, 2011 lapse). (Brehm; Statement of Bill Brehm).

9) Livingreen I's factual finding 22 stated:

Employer knowingly allowed employees to work without workers' compensation insurance coverage during the period April 13, 2011, to June 1, 2011. (Record).

10) Livingreen I's factual finding 26 stated:

Employer employed up to forty (40) employees at various times from July 9, 2008 to July 11, 2008; November 14, 2008 to April 24, 2009; November 26, 2009 to June 30, 2010; and April 13, 2011 to June 1, 2011, the relevant periods it was uninsured for workers' compensation liability for purposes of this hearing (Gerharz; Petitioner's Hearing Evidence at Exh. 11, 13).

11) Livingreen I's factual finding 30 stated:

Employer accrued 1,800 total uninsured employee workdays from July 9, 2008 to July 11, 2008; November 14, 2008 to April 24, 2009; November 26, 2009 to June 30, 2010; and April 13, 2011 to June 1, 2011. (Gerharz; Uninsured Employer Investigation Summary).

12) Livingreen I's factual finding 32 stated:

Five injuries were reported to the division while Employer was conducting business but no injuries occurred during a period Employer was uninsured. (Gerharz; Petitioner's Hearing Evidence at Exh. 12).

13) Livingreen I's factual finding 33 stated:

Employer's business would suffer severe financial hardship if the maximum civil penalty were assessed; e.g., the company might go out of business and many people might lose their employment. (Brehm; Petitioner's Hearing Exhibits 1-39, February 8, 2012; Employer's Supplemental Evidence, February 24, 2012; Accounting Records for Livingreen Services, Inc., January 18, 2012; Tax Returns for Livingreen Services, Inc., January 18, 2012).

14) Livingreen I's factual finding 34 stated:

Employer could be assessed a maximum civil

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