12-0077. COREY A. RUSSELL Employee v. ROADRUNNER AMUSEMENT INC. Uninsured Employer and THE ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND Defendants.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0077. COREY A. RUSSELL Employee v. ROADRUNNER AMUSEMENT INC. Uninsured Employer and THE ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND Defendants ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512COREY A. RUSSELL, Employee, Applicant v. ROADRUNNER AMUSEMENT, INC., Uninsured Employer, and THE ALASKA WORKERS' COMPENSATION BENEFITS GUARANTY FUND, Defendants.AWCB Decision No. 12-0077Filed with AWCB Anchorage, Alaska on April 24, 2012AWCB Case No. 200822815 FINAL DECISION AND ORDER ON RECONSIDERATIONThe Alaska Workers' Compensation Board issued its Final Decision and Order, AWCB Decision No. 12-0063 (RussellI) on March 30, 2012, with an Errata on April 2, 2012. On April 10, 2012, the Alaska Workers' Compensation Benefits Guaranty Fund (Fund) filed its Petition for Reconsideration; neither Employer nor Employee opposed the petition. Administrator Velma Thomas represented the Fund. The record closed when the board heard the matter on the written record on April 24, 2012. ISSUES The Fund contends the board considered medical records which were not served on the Fund and the Employer in its decision finding Employee entitled to ongoing medical benefits. The Fund contends it should have been provided an opportunity to seek an expert opinion on these medical records and have an expert offer an opinion on the records. The Fund contends the board's consideration of these records rises to the level of a denial of the Fund's due process rights. Neither Employer nor Employee responded to the Fund's petition for reconsideration, but it is presumed Employee opposes reconsideration thereby contending Russell I was correctly decided. Did the board violate the Fund's due process rights by considering the records attached to a Medical Summary form filed by Lesle A. Chanar on December 2, 2011, as ordered at hearing? FINDINGS OF FACT A preponderance of the evidence establishes the following facts and factual conclusions:
1. The findings of fact from Russell I are hereby reincorporated. (Russell I).
2. As of the March 17, 2011 prehearing all parties were aware Employee was incarcerated. (3/17/2011 prehearing conference summary).
3. An affidavit of readiness (ARH) was filed by Employer on April 19, 2011, stating Employer was fully ready for hearing and all discovery was complete. If the Fund believed discovery was not complete it should have opposed Employer's ARH, but it did not. (4/19/2011 ARH, record).
4. Wilton Adjustment Services is the agent and representative of the Fund in this case, and the contracted adjuster for the Alaska Workers' Compensation Benefits Guaranty Fund pursuant to AS 23.30.082. (Experience, observations, judgment and conclusions).
5. The hearing was held on September 7, 2011, during which Jo Ann Pride, Senior Claims Manager for Wilton Adjustment Services, the contracted adjuster for the Fund, was ordered by the board to acquire Employee's treatment records from the Anchorage Correctional Center. No party raised any objection to this order at hearing. (Record).
6. A medical summary (11/29/2011 medical summary) containing treatment records from Anchorage Correctional Complex was filed with the board on December 2, 2011, by Lesle Chanar, an employee of Wilton Adjustment Services. (Medical Summary dated 11/29/2011, date stamped as received in Anchorage office of the AWCB on 12/2/2011).
7. The certificate of service shows the 11/29/2011 medical summary was served on the Fund, the board, and Employee. Wilton did not serve the 11/29/2011 medical summary on Employer. (Experience, observations, judgment and conclusions).
8. Sixty-three of the records contained in the 11/29/2011 medical summary predate the hearing; ten of the seventy-three records are dated after the date of the hearing. (11/29/2011 medical summary). One of the post-hearing records is generally referenced by the board in finding 16 of Russell I. (Russell I). The Fund could have obtained the 63 records that pre-date the hearing prior to the hearing and submitted those records to an independent medical review prior to the hearing. (Experience, observations, judgment and conclusions).
9. Neither Employer nor the Fund raised an objection to the consideration of the 11/29/2011
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