12-0171. HAMAD ELHAG Employee Respondant V. TRIDENT SEAFOODS CORP. Employer and LIBERTY INSURANCE CORP. Insurer Petitioners.

• Court: Alaska

Alaska Workers Compensation Decisions 2012. Workers' Compensation Board 12-0171. HAMAD ELHAG Employee Respondant V. TRIDENT SEAFOODS CORP. Employer and LIBERTY INSURANCE CORP. Insurer Petitioners ALASKA WORKERS' COMPENSATION BOARDP.O. Box 115512 Juneau, Alaska 99811-5512HAMAD ELHAG, Employee, Respondant, V. TRIDENT SEAFOODS CORP., Employer, and LIBERTY INSURANCE CORP., Insurer, Petitioners.AWCB Case No. 201010307AWCB Decision No. 12-0171Filed with AWCB Anchorage, Alaska on September 20, 2012INTERLOCUTORY DECISION AND ORDERTrident Seafood Corporation's (Employer's) June 27, 2012 petition to dismiss Hamad Elhag's (Employee) May 14, 2011 claim was scheduled for hearing on July 27, 2012 and heard on the written record in Fairbanks, Alaska on August 21, 2012. Attorney Jeffrey Hollo way represented Employer. Employee's non-attorney representative, Hamoudi Albahadli, represented Employee. The record closed at the conclusion of deliberations on August 31, 2012. ISSUE Employer contends Employee has willfully and unreasonably refused to cooperate with discovery under the Act. In particular. Employer contends Employee has failed to comply with two oral and two written board orders for him to provide complete answers to Employer's interrogatories. Employer contends, without the information sought, it has been denied the ability to investigate and defend Employee's claim. Because Employer contends it has suffered "severe prejudice," Employer requests dismissal of Employee's claim as a sanction. Employee contends Employer's request was impossible to comply with. He contends Employer requested him to have his answers notarized in both Alaska and Washington and because he lived in Alaska he could not get his answers notarized in Washington. Employee also contends his non-attorney representative had difficulty getting the interrogatories to him so he could provide his answers and, when he did receive and answer them, he sent the un-notarized answers to Employer. Employee further contends he substantially complied with Employer's request by providing the requested information at a previous prehearing conference. Last, Employee contends he was not aware of the deadline Employer had set for his responses. Should Employee be sanctioned under AS 23.30.108(c) for his noncompliance with discovery and, if so, what is an appropriate sanction? FINDINGS OF FACT The following facts and factual conclusions are established by a preponderance of the evidence: 1) On July 31, 2010, Employee reported hurting his back two days previous when he fell while pushing a freezer rack for Employer. (Report of Occupational Injury, July 31, 2010). 2) On August 4, 2010, Employee reported to his treating physician he also hit the back part of his head when he fell backwards. (Shepard report, August 4, 2010). 3) On February 26, 2011, William Stump, M.D., and Joseph Lynch, M.D., examined Employee as a panel for an employer medical evaluation (EME). The panel's report concluded Employee was medically stable and did not recommend further treatment. The report stated Employee had no work restrictions or permanent impairment. (Stump report, February 26, 2011). 4) On March 26, 2011, Employer controverted benefits based on Drs. Stump's and Lynch's report. (Notice of Controversion, March 26, 2011). 5) On May 17, 2011, Employee filed a workers' compensation claim (WCC) seeking temporary total disability benefits. The claim also references an "order of protection." (WCC, May 14, 2011). 6) On June 15, 2011, Hamoudi Albahadli appeared at a prehearing conference as an interpreter for Employee and stated Employee was unable to participate because he did not have a telephone. The designee advised Mr. Albahadli Employee would have to file an entry of appearance form for Mr. Albahadli to represent him. (Prehearing Conference Summary, June 15, 2011). 7) On July 5, 2011, Employer sent Employee numerous releases for his signature, including a medical release. The medical release presented only a signature line and no notary provisions. (Employer's letter and release, July 5, 2011). 8) On July 11, 2011, Employer answered and controverted Employee's claim, and denied all benefits. (Answer and Notice of Controversion, July 8, 2011). 9) On July 20, 2011, Employee orally amended his claim to include a compensation rate adjustment. The conference summary states Employee filed Mr. Albahadli's entry of appearance and an affidavit of readiness for hearing, but Employer was not served with copies of these documents. The designee reminded Employee he must serve Employer with copies of all documents filed with the board. The summary also states Employer sent discovery releases to Employee on July 7, 2011 but Employee has not received them because he no longer resided at his address of record. Employee stated he had no address to give the board and directed all mail to be sent to his non-attorney representative's address in Washington. Employer agreed to resend the releases to the non-attorney representative's address. The designee directed Employee to either sign the discovery releases and return them within14 days after the releases are served, or file a petition for protective order with the board. The designee provided Employee with a blank petition form and also explicitly advised him:

[U]pon written request by the employer, AS 23.30.107 states, "an employee shall provide written authority to the employerato obtain medical and rehabilitation information relative to the employee's injury." If an employee does not believe the information requested is applicable to his injury, an employee may request a protective order under AS 23.30.107(a) within 14 days after the employer serves its request for release of information on the employee. If an employee fails to file a petition and fails to deliver the requested releases to the employer within 14 days after service, the employee's rights to benefits under the Act are suspended until the written authority is delivered. AS 23.30.108.

(Prehearing Conference Summary July 20, 2011). 10) On July 22, 2011, Employer re-sent releases, requesting Employee to sign and return them within two weeks of the date of the letter. The medical release presented only a...