2006-002. Terry Smith Movant vs. CSK Auto Inc. Royal Sun Alliance and Arctic Adjusters Respondents.

• Case Date: January 27, 2006
• Court: Alaska

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-002. Terry Smith Movant vs. CSK Auto Inc. Royal Sun Alliance and Arctic Adjusters Respondents Alaska Workers' Compensation Appeals CommissionTerry Smith, Movant, vs. CSK Auto Inc., Royal Sun Alliance and Arctic Adjusters, Respondents.Decision No. 002 January 27, 2006AWCAC Appeal No. 05-006AWCB Decision No. 05-0322 AWCB Case No. 200106934Final Decision Final Decision on Motion for Extraordinary Review of Alaska Workers' Compensation Board Order No. 05-0322, Fairbanks Panel, by William Walters, Chairman, and Chris Johansen, Board Member for Management. Appearances: Terry Smith, movant, pro se; Robert L. Griffin, Griffin and Smith, for respondents CSK Auto Inc., Royal Sun Alliance, and Arctic Adjusters, Inc. Thss decision has been edited to conform to technical standards for publication.Commissioners: Jim Robison, Marc Stemp, and Kristin Knudsen. By: Kristin Knudsen, Chair. Terry Smith asks the commission to review a decision by the board that affirmed discovery orders that the board's designee, pre-hearing officer Sandra Stuller, made in a pre-hearing conference on September 26, 2005. The board heard Smith's appeal of the designee's discovery orders on October 13, 2005. The board's decision affirming the orders was issued on October 28, 2005. Smith filed a petition for reconsideration November 3, 2005, which was heard on the written record. The board's decision on reconsideration was issued December 9, 2005. Smith then appealed to this commission, seeking extraordinary review of the board's December 9, 2005 order refusing reconsideration and affirming the discovery orders. We deny the motion for extraordinary review of the December 9, 2005 order. Underlying facts and proceedings. Smith injured his back while working as a delivery driver by lifting boxes on March 29, 2001. CSK Auto, Inc., through its insurer, Royal Sun Alliance, and adjuster, Arctic Adjusters, paid temporary total disability compensation and permanent partial disability compensation, medical benefits, and reemployment benefits to Smith. Smith, who stated to the commission that he was advised by the Alaska Injured Workers' Alliance at the time, entered into a partial compromise and release agreement (settlement) that was approved by the board in 2002. Over a year later, Smith petitioned the board to set aside the settlement agreement and also filed a claim for additional compensation and benefits. While his claim and petition were pending before the board, Smith sought discovery of certain materials from CSK Auto and Arctic Adjusters, including a MSDS(fn1) on the back belt supplied to him and a back belt Certificate of Training.(fn2) Smith also sought to obtain copies of medical records and letters sent by Arctic Adjusters to Dr. Patrick Radecki, one of the employer's medical examiners, and copies of the publications listed in his resume. Smith also sought a complete log of all contacts regarding his case by the employer, an "unredacted log." The petition to compel discovery was heard in a pre-hearing conference by the board's designee, pre-hearing officer Sandra Stuller, in a procedure permitted under AS 23.30.108. The designee gave a detailed order of discovery in the pre-hearing conference summary(fn3) and scheduled Smith's appeal to the board for hearing on October 13, 2005. Thie board's orders. After hearing Smith's arguments, the board issued an interlocutory order(fn4) (AWCB No. 05-0281). The board affirmed the board designee's determinations as "supported by reason," "supported by substantial evidence," and "reasonably well-tailored to the actual issues in dispute."(fn5) It modified the order to direct in camera review of the entire adjuster file by the employee, with a board designee to rule on whether challenged documents were privileged.(fn6) Smith then filed a petition for reconsideration of the board's order. Smith argued then, as he does here, that he is entitled to all unprivileged evidence about his injury. To the board, he argued that the information he sought, particularly the MSDS, was relevant to a possible third party action under AS 18.60.075.(fn7) He asked for broad discovery of all matters relevant to Dr. Radecki because he wished to demonstrate that the physician was biased. The board's decision on reconsideration, AWCB Decision No. 05-0322, was issued December 9, 2005. In it the board elaborated on the standard of review it applied to the board designee's September 26, 2005 discovery orders set out in the pre-hearing conference summary.(fn8) It is that decision which Smith challenges here. Smith's argument to the commission and our analysis. Smith asks the commission to "go all the way back" and review all of the discovery demands that he claims has been frustrated by the board and the appellee. Before the commission, Smith also asserted he needed documents from third parties (only Dr. Radecki was named) in order to pursue a third party claim.(fn9) Smith presented no specifics of the documents he was unable to obtain by the board's orders, or how such documents might affect the outcome of his claim or petition, beyond his assertion that the board refused to allow him to obtain information from Dr. Radecki and the MSDS and...