12-0081. JERALYN K. PHIFER Employee Respondant v. FAIRBANKS MEMORIAL HOSPITAL Employer and SENTRY INSURANCE MUTUAL CO Insurer Petitioners.

Court:Alaska
 
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Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0081. JERALYN K. PHIFER Employee Respondant v. FAIRBANKS MEMORIAL HOSPITAL Employer and SENTRY INSURANCE MUTUAL CO Insurer Petitioners ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811 -5512JERALYN K. PHIFER, Employee, Respondant, v. FAIRBANKS MEMORIAL HOSPITAL, Employer, and SENTRY INSURANCE MUTUAL CO, Insurer, Petitioners.AWCB Case No. 200821314AWCB Decision No. 12-0081Filed with AWCB Fairbanks, AlaskaOn May 2, 2012FINAL DECISION AND ORDERFairbanks Memorial Hospital's (Employer) November 3, 2010 petition for sanctions was heard in Fairbanks, Alaska on March 15, 2012. Attorney Robert Groseclose appeared for employer and its insurer. Jeralyn Phifer (Employee) did not appear. The Board proceeded with the hearing pursuant to 8 AAC 45.070(f). The record closed at the hearing's conclusion on March 15,2012. ISSUE Jeralyn Phifer v. Fairbanks Memorial Hospital, AWCB Decision No. 11-0136 (August 26, 2011) (Phifer 7), ordered Employee to provide Employer with signed releases within thirty days of that decision, and provided for the dismissal of Employee's claim should she fail to do so. Employer contends Employee has still not provided the ordered releases and is now seeking an order dismissing Employee's claim. Employer contends it has made numerous and unsuccessful efforts to depose Employee, to re-schedule Employee's deposition after she failed to attend, and to obtain releases of information from Employee. Employer contends Employee failed to attend multiple prehearing conferences. Employer contends every effort has been made to accommodate Employee, and since this is an "extreme" case of non-compliance, Employee's claim should be dismissed. Employee did participate in the hearing and so her position is unknown. It is assumed Employee contends her claim should not be dismissed. 1) Was Employee properly noticed of the hearing? 2) Shall Employee be sanctioned under AS 23.30.108(c) for her failure to sign releases? 3) If so, what is an appropriate sanction? FINDINGS OF FACT A preponderance of the evidence in the record as a whole supports the following facts and factual conclusions: 1) The findings of fact and factual conclusions of Jeralyn Phifer v. Fairbanks Memorial Hospital, AWCB Decision No. 11-0136 (August 26, 2011) (Phifer I), are reaffirmed and incorporated into this decision. 2) Employee was employed by Fairbanks Memorial Hospital as a Registered Nurse. On December 2, 2008, Employee reported injuring her back while repositioning a patient. (Report of Occupational Injury or Illness, December 15, 2008). 3) On August 5, 2010, the Board issued a subpoena for Employee's deposition, scheduled for August 19, 2010. (Subpoena for Deposition, August 5, 2010). 4) On August 14, 2010, Employer controverted Employee's claim based on the report from its independent medical evaluator, Douglas Bald, M.D. (Notice of Controversion, August 14, 2010). 5) On August 24, 2010, Employee filed a petition for a protective order seeking "Protection of medical records." (Employee's Petition for Protective Order, August 24, 2010). 6) On August 25, 2010, Employer opposed Employee's petition for protective order. (Employer's Opposition, August 25, 2010). 7) Although the record is silent as to a reason, Employee's deposition was rescheduled from August 19, 2010 to September 27, 2010. (Subpoena for Deposition, September 10, 2010). 8) On September 20, 2010, Christopher Beltzer, Esq., entered his appearance for Employee. (Entry of Appearance, September 20, 2010). 9) At prehearing on September 20, 2010, the parties confirmed Employee's deposition was set for September 27, 2010, and agreed to postpone Employee's petition for protective order in order to allow Employee's attorney an opportunity to review the file and file a brief. (Prehearing Conference Summary, September 20, 2010). 10) The parties agreed to reschedule Employee's deposition from September 27, 2010 to October 18, 2010. (Employer's Petition for Sanctions, November 5, 2010; Wilson). 11) On October 4, 2010, Employee filed her memorandum in support of her petition for a protective order. (Employee's Memorandum, October 4, 2010). 12) At an October 5, 2010 prehearing, the parties resolved Employee's petition for protective order and Employee agreed to sign the releases. (Prehearing Conference Summary, October 5, 2010). 13) On October 14, 2010, counsel for Employee withdrew from the case. (Notice of Withdrawal, October 14, 2010). 14) On October 18, 2010, Employee did not attend her properly noticed deposition. (Wilson Affidavit, November 3, 2010). 15) On November 5, 2010, Employer filed its petition for sanctions. (Petition for Sanctions, November 11, 2010). 16) Employee did not attend a January 18, 2011 prehearing on the issue of Employer's petition for sanctions. Board staff attempted to contact Employee at her telephone number of record and left a message. Employer reported Employee had not returned...

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