2005-001. Doyon Drilling Inc. and Alaska National Ins. Co. Appellants vs. Randy A. Whitaker, Appellee.

• Case Date: December 29, 2005
• Court: Alaska

Alaska Workers Compensation Decisions 2005. Workers' Compensation Appeals Commission 2005-001. Doyon Drilling Inc. and Alaska National Ins. Co. Appellants vs. Randy A. Whitaker, Appellee Alaska Workers' Compensation Appeals Commission Doyon Drilling Inc. and Alaska National Ins. Co., Appellants, vs. Randy A. Whitaker, Appellee.Decision No. 001 December 29, 2005AWCAC Appeal No. 05-008 AWCB Decision No. 05-0330 AWCB Case No. 200207685Memorandum Decision and Order on Motion to Stay Memorandum Decision and Order on Motion for Stay of Alaska Workers' Compensation Board Decision and Order No. 05-0330, Fairbanks Panel, by Fred G. Brown, Chairman, and Chris Johansen, Board Member for Management. Appearances: Richard Wagg, Russell, Teshe, Wagg, Cooper and Gabbert, for appellants, Doyon Drilling, Inc. and Alaska National Ins. Co.; Robert Beconovich, Esq., for appellee, Randy A. Whitaker. This decision has been edited to conform to technical standards for publication. Commissioners: Jim Robison, Philip Ulmer, and Kristin Knudsen. By: Kristin Knudsen, Chair. On December 28, 2005, a commission panel, Jim Robison for employees, Philip Ulmer for employers, and the Chair, heard argument on a motion for a stay of the Alaska Workers' Compensation Board's hearing panel decision of December 14, 2005. Richard Wagg represented the appellant and Robert Beconovich appeared for the appellee. The commission may grant a stay of payments required by a board order if the commission finds that the party seeking the stay is able to demonstrate the appellant "would otherwise suffer irreparable damage"(fn1) and that the appeal raises "questions going to the merits [of the board decision] so serious, substantial, difficult and doubtful as to make . . . a fair ground for litigation and thus more deliberate investigation."(fn2) Continuing future periodic compensation payments may not be stayed unless the appellant can show both irreparable harm and"the existence of the probability of the merits of the appeal being decided adversely to he recipient of the compensation payments."(fn3) In addition to his memorandum, Mr. Wagg submitted an affidavit with attachments. There was no additional evidence presented at the hearing. Appellant argued that the appellant, once it pays compensation and medical benefits ordered paid by the board panel, will be unable to recover them from the appellee if the appeal is decided in the appellant's favor. The Supreme Court, in Croft v. Pan Alaska Trucking, Inc.,(fn4) interpreted AS 23.30.155(j) so as to make overpayments of benefits and compensation (including payments to the employee's attorney) not recoverable except through deduction from future payments of compensation, if owed.(fn5) In view of the likelihood that no future compensation would be owed once the appellee reached medical stability, Mr. Wagg argued, the appellant would be irreparably harmed because it had no means of recovering amounts paid if successful on appeal. Mr. Wagg conceded that in the usual case, the burden posed by AS 23.30.125(c) militates against a stay of ongoing benefits; in this case, he argues, there is such a "clear showing of probable success"(fn6) on the merits that the balance of hardships tips in the appellant's favor even as to the on-going future periodic payments of compensation. Mr. Beconovich argued that burden was not met where, as here, his client, at age 39, resides with his...