2006-006. Doyon Drilling Inc. and Alaska National Insurance Co. Appellants vs. Randy A. Whitaker Appellee.

• Case Date: March 02, 2006
• Court: Alaska

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-006. Doyon Drilling Inc. and Alaska National Insurance Co. Appellants vs. Randy A. Whitaker Appellee Alaska Workers' Compensation Appeals CommissionDoyon Drilling Inc. and Alaska National Insurance Co., Appellants, vs. Randy A. Whitaker, Appellee.Decision No. 006March 2, 2006AWCAC Appeal No. 05-008AWCB Decision No. 05-330 AWCB Case No. 200207685Final Decision and Orde Final Decision and Order on Motion for Stay and Motion to Dismiss Appeal of Alaska Workers' Compensation Board Order No. 05-330, Northern panel at Fairbanks, by Fred G. Brown, Chairman, and Chris Johansen, Board Member for Management. Appearances: Richard Wagg, Russell, Tesche, Wagg, Cooper and Gabbert, for appellants Doyon Drilling Inc. and Alaska National Ins. Co.; Robert M. Beconovich, Esq., for appellee Randy A. Whitaker. This decision has been edited to conform to technical standards for publication.Commissioners: Jim Robison, Philip E. Ulmer,and Kristin Knudsen. By: Kristin Knudsen, Chair. The appellant, Doyon Drilling Inc., and its insurer, Alaska National Ins. Co., asked the commission to stay the Workers' Compensation Board's decision No. 05-330 which it issued December 14, 2005, at Fairbanks, Alaska. Randy Whitaker, the appellee, moved to dismiss the appeal, arguing that the commission did not have jurisdiction. In a Memorandum Order on December 29, 2005, the commission stayed the payment of past due benefits and attorney fees ordered by the board, but refused to stay on-going benefits, reasoning that the appellant failed to meet the standard in AS 23.30.125(c). The commission requested the parties to brief certain points, and indicated it would reconsider its decision after the additional briefing was reviewed. Briefing was complete on January 30, 2006. After much consideration and careful review of the briefs, the commission arrived at the opinion that the board lacked jurisdiction to enter a decision on the claim for continuing temporary total disability compensation, and that therefore the commission lacks jurisdiction to consider the merits of the board's decision. We VACATE the board's December 2005 order and we REMAND the case to the board for further proceedings. We direct the board to obtain a remand from the Superior Court for proceedings before the board to determine whether the employee is entitled to temporary total disability benefits, penalties, interest and attorney fees after July 22, 2005. Having VACATED the board's order for lack of jurisdiction, and REMANDED the matter to the board without retaining jurisdiction, we DISMISS the appeal and VACATE our stay. Factual and procedural background. When Randy Whitaker injured his knee in April 2002 he had already endured three right knee surgeries, including a repair of the anterior cruciate ligament. His April 2002 knee injury resulted in more medical care, including surgery and payment of temporary disability compensation until February 27, 2003. A permanent partial impairment (PPI) rating resulted in PPI compensation paid by the employer. Whitaker later obtained additional surgical treatment for his knee, and the board heard the claim for payment of the additional surgery and temporary disability compensation in October and November 2004. The board made a finding that Whitaker had "provided clear and convincing evidence that his condition is not medically stable" and, based on this finding, concluded that "the employee is entitled to continuing TTD [temporary total disability] or TPD [temporary partial disability] benefits from February 28, 2004 forward through the period of his recovery."(fn1) This decision(fn2) was appealed to the Superior Court.(fn3) July 22, 2005, Doyon filed a controversion of on-going temporary total disability compensation on the basis of medical stability. Whitaker promptly filed a claim for benefits, including penalties for non-payment of compensation awarded, and Doyon filed a petition for modification of the board's order. The board heard the petition and claim on November 17, 2005. Doyon withdrew the petition to modify at the beginning of the hearing.(fn4) The board issued a decision on the claim on December 14, 2005,(fn5) which is the subject of this appeal by Doyon. Analysis of the question of jurisdiction. We begin with the proposition that this agency can have jurisdiction to determine the merits of an appeal from a board decision only if the board's decision was entered based on the proper exercise of the board's jurisdiction. Administrative review by this agency of the board's decision cannot cure an original jurisdictional defect. We will not add another level of administrative review to an unstable structure founded on boggy jurisdictional ground. Therefore, we first consider whether the board had jurisdiction to enter the decision and order of December 14, 2005. In our Memorandum of December 29, 2005,(fn6) we asked the parties to brief certain questions, including: "Did the Board have jurisdiction or statutory authority to consider evidence of medical stability on November 17, 2005?" We are persuaded that in this case the board did not have jurisdiction to consider evidence, or the issue of medical stability, without remand from the Superior Court, on November 17, 2005. That being the case, the board did not have jurisdiction to enter an order extending the period of its December 2004 order, and concluding the employee was entitled to continuing temporary total disability compensation, without making findings of fact to support its conclusion that the employee was entitled to continuing temporary total disability compensation. The board's December 2004 order directed the employer to pay temporary disability "in accord with this decision."(fn7) The decision states the employee is entitled to temporary benefits from "February 28, 2004 forward through the period of his recovery."(fn8) The board did not expressly retain jurisdiction in its order to determine future disputes regarding payment of the temporary benefits it directed the employer to pay, or to determine when the employee's period of recovery was at an end.(fn9) The question is, then, did the board implicitly retain jurisdiction, or have a statutory basis for jurisdiction, to determine whether the employee's temporary benefits were no longer payable? Doyon argues that a separate basis exists for the board to exercise jurisdiction over the employee's claim. AS 23.30.185 prohibits the payment of temporary disability compensation for any period after the date of medical stability.(fn10) Coupled with this prohibition is a...