12-0076. JEFFREY A. FALES Employee Respondant v. FAST EDDY'S RESTAURANT and YOUNG'S MOTEL DBA Employer and REPUBLIC INDEMNITY CO OF AMERICA Insurer Petitioners.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0076. JEFFREY A. FALES Employee Respondant v. FAST EDDY'S RESTAURANT and YOUNG'S MOTEL DBA Employer and REPUBLIC INDEMNITY CO OF AMERICA Insurer Petitioners ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512 JEFFREY A. FALES, Employee, Respondant v. FAST EDDY'S RESTAURANT and YOUNG'S MOTEL DBA, Employer, and REPUBLIC INDEMNITY CO OF AMERICA, Insurer, Petitioners.AWCB Case No. 200822208Filed with AWCB Fairbanks, Alaska on April 20, 2012AWCB Decision No. 12-0076FINAL DECISION AND ORDERFast Eddy's Restaurant's (Employer) December 12, 2011 petition to dismiss Jeffrey Fales' (Employee) July 20, 2011 workers' compensation claim was heard in Fairbanks, Alaska on March 1, 2012. Attorney Rebecca Holdiman Miller appeared on behalf of Employer. Employee did not appear. The hearing proceeded in accordance with 8 AAC 45.070, and record closed at the hearing's conclusion on March 1, 2012. ISSUE Employer contends four prehearing conferences have occurred in this case, and Employee has failed to participate in all of them. Employer contends it has twice sent releases to Employee, which he has not returned. Employer notes the board has repeatedly ordered Employee to sign and return his releases. Employer contends because Employee has failed to sign and return properly served releases of information, and because Employee continues to fail to participate in prehearing conferences, it has not been able to conduct any discovery. Employer contends Employee has failed to actively pursue his claim, and his claim should be dismissed. Employee did participate in the hearing and so his position is unknown. It is assumed Employee contends his claim should not be dismissed. 1) Shall Employee be sanctioned under AS 23.30.108(c) for his failure to sign releases? 2) If so, what is an appropriate sanction? FINDINGS OF FACT 1) On December 24, 2008, Employee reportedly hurt his right shoulder when he picked up a 35 pound cooking oil container. (Report of Injury, February 3, 2009). 2) Employer began paying temporary total disability benefits. (Compensation Reports, March 31, 2009; April 10, 2009; September 3, 2009). 3) On July 27, 2009, Employer first controverted Employee's benefits, relying on the employer's independent medical evaluation of Douglas Bald, M.D., who opined Employee's conditions were related to his chronic and preexisting cervical, thoracic and lumbar spine disease. (Notice of Controversion, July 27, 2009). 4) On August 2, 2011, Employee filed his workers' compensation claim, claiming permanent total disability and permanent partial impairment benefits, and medical and transportation costs. (Workers' Compensation Claim, July 20, 2011). 5) On August 18, 2011, Employer served Employee with medical, social security, employment and workers' compensation releases via certified mail, return receipt requested. (Letter from Employer to Employee, August 18, 2011). On August 30, 2011, "Heather Herman" signed the return receipt for the releases. (Exhibit 14, Employer's Hearing Brief, February 23, 2012). 6) On August 23, 2011, Employer again controverted Employee's benefits on numerous grounds, and answered Employee's claim. (Notice of Controversion, August 23, 2011, Answer, August 23, 2011). 7) On August 31, 2011, Employer served Employee with insurance records and Department of Corrections releases via certified mail, return receipt requested. (Letter from Employer to Employee, August 31, 2011). On September 16, 2011, Employee signed the return receipt for the releases. (Exhibit 15, Employer's Hearing Brief, February 23, 2012). 8) Employee did not participate in a September 12, 2011, prehearing conference. Employer stated it did not have releases from Employee, so it would be filing a petition to compel. (Prehearing Conference Summary, September 12, 2011). 9) On September 15, 2011, Employer petitioned for an order compelling Employee to sign releases it had sent on August 18, 2011 and August 31, 2011. (Employer's Petition to Compel, September 15, 2011). 10) On December 1, 2011, a second prehearing was held. Employee did not participate. The board telephoned Employee and left a message before proceeding. Employer requested an order compelling Employee to sign the releases; stated it would be filing a petition to dismiss; and requested a follow-up prehearing to set that petition for hearing. The designee granted Employer's September 15, 2011 petition, and ordered Employee to sign and return the releases. (Prehearing Conference...

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