2006-010. Abdul K. Adepoju Appellant vs. Fred Meyers Stores Inc. Appellees.

• Case Date: May 11, 2006
• Court: Alaska

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-010. Abdul K. Adepoju Appellant vs. Fred Meyers Stores Inc. Appellees Alaska Workers' Compensation Appeals Commission Abdul K. Adepoju, Appellant, vs. Fred Meyers Stores, Inc., Appellees.Decision No. 010 May 11, 2006 AWCAC Appeal No. 06-006 AWCB No. 200014082 Superior Ct No. 4FA 05-01979 Civ.Memorandum Decision and Order Memorandum decision and order on appeal transferred to the Workers' Compensation Appeals Commission from the Superior Court for the Fourth Judicial District by Winston Burbank, Superior Court Judge, on appeal from Alaska Workers' Compensation Board Decision No. 05-0177, Fred G. Brown, Chairman, John Giuchici, Member for Labor, Chris Johansen, Member for Management. Appearances: Abdul K. Adepoju, self-represented appellant; Paul Hoffman, for appellee Fred Meyers Stores, Inc.Before: Jim Robison and Marc Stemp, Appeals Commissioners, Kristin Knudsen, Chair By: Kristin Knudsen, Chair. Abdul K. Adepoju, the appellant, filed his appeal of the Board's decision denying his claim for compensation and medical benefits in the Superior Court on July 28, 2005, before November 7, 2005, the effective date of the statute creating this commission. The Superior Court entered an order transferring the appeal to the appeals commission, without timely objection by the appellant. The appellant objected to the appeals commission hearing his appeal, and the commission chair requested the parties to supply briefs on the issue of the commission's jurisdiction to hear the appeal. The legislature has constitutional authority to define the jurisdiction of the courts and of quasi-judicial administrative agencies. The commission will not exercise jurisdiction where the legislature has reserved jurisdiction to the courts. We disagree with appellee's argument that the legislature, in saving pending appeals to the superior court when it created the commission, granted the Superior Court discretion to transfer pending appeals to the commission. This appeal was transferred by order of the Superior Court on the motion of the appellee. Adepoju did not voluntarily appeal to this commission, and dismissal of the appeal would leave the parties in a jurisdictional vacuum. We announce our intent to decline jurisdiction, suspend consideration of the appeal for sixty days and direct Adepoju to ask the superior court to vacate the order transferring the appeal. Factual hnistory. We summarize the factual history recited by the Alaska Workers' Compensation Board.(fn1) We do not engage in fact finding, and for purposes of this decision, we do not examine the record to determine if the Board's findings are supported by substantial evidence. This summary is intended only to provide historical context. Abdul Adepoju suffered a serious neck injury in the course of his employment by Veco, Inc., in oil spill clean up during 1989. That injury resulted in fusion of three vertebrae in his neck, the fifth and sixth vertebrae and the sixth and seventh vertebrae. In 1993, he settled his claim against Veco in a way that "strictly limited his future medical care." Adepoju claimed that he injured his neck again in 2000 while working for Fred Meyer Stores, as a result of a defective slicing machine. He claimed that the machine would occasionally get stuck and slow down, so that it was hard to push the machine. He estimated that machine's automatic slicing function was inoperable approximately three months out of the nine months from October 1999, possibly more. On June 19, 2000, he went to the Tanana Valley Clinic for treatment of pain on the right side of his neck, in the right trapezius, body weakness and inability to walk and grip. He was diagnosed with cervical myelopathy and he was transferred to Providence Hospital in Anchorage by air ambulance the next day. There Timothy Cohen, MD, performed anterior and posterior decompressive surgery and fused the neck vertebrae from the third cervical vertebra to the sixth. Adepoju was discharged from Providence Hospital in August 2000. The board's decision does not relate whether compensation and medical benefits were paid and later controverted, or whether the injury was controverted from the first time it was reported. Procedural history. The Alaska Worker's Compensation Board heard Adepoju's claim for compensation and medical benefits on June 1 and 2, 2005. Adepoju was represented by counsel in the board proceeding. Videotapes of Adepoju walking with a "Canadian cane" over uneven ground and snow were included in the evidence. The board denied Adepoju's claim, noting that "[b]ased on the employee's consistent and incredible embellishments concerning the nature of his condition, we find any medical opinions as to causation, relying on observations or and statements by the employee must be discounted. AS 23.30.122."(fn2) Adepoju filed a notice of appeal to the Superior Court on August 5, 2005. At the time, he was still represented by counsel. The board, a party under...