2006-011. Alaska Insurance Guaranty Ass'n and Northern Adjusters Movants vs. Edwin Simons Fairbanks Nissan and Alaska Workers' Compensation Benefits Guaranty Fund Respondent.

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

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-011. Alaska Insurance Guaranty Ass'n and Northern Adjusters Movants vs. Edwin Simons Fairbanks Nissan and Alaska Workers' Compensation Benefits Guaranty Fund Respondent Alaska Workers' Compensation Appeals Commission Alaska Insurance Guaranty Ass'n and Northern Adjusters, Movants, vs. Edwin Simons, Fairbanks Nissan, and Alaska Workers' Compensation Benefits Guaranty Fund, Respondents.Decision No. 011 June 2, 2006 AWCAC Appeal No. 06-013 AWCB Decision No. 06-097 AWCB Case No. 200029154MEMORANDUM DECISION Memorandum decision on motion by Alaska Insurance Guaranty Association and Northern Adjusters for extraordinary review of Alaska Workers' Compensation Board Decision No. 06-097, William Walters, Chairman; Debra G. Norum, Member for Management; Damien J. Thomas, Member for Labor. Appearances: Timothy J. McKeever, Holmes, Weddle, Barcott, for Movants Alaska Insurance Guaranty Association and Northern Adjusters; Edwin Simons, self-represented, Toby Steinberger, AAG, Office of the Attorney General for Alaska Workers' Compensation Benefits Guaranty Fund.Before: Marc Stemp and John Giuchici, Appeals Commissioners, Kristin Knudsen, Chair. By: Kristin Knudsen, Chair. This motion for extraordinary review challenges the board's construction of AS 21.80.060(a)(1). The movant, Alaska Insurance Guaranty Association (AIGA), asked the board to be dismissed as a party to the employee's claim, arguing it was not liable for claims filed after December 31, 2003, the deadline set by the court for presentation of claims to the liquidator of Reliance Insurance, the employer's bankrupt insurer. The board, relying on Jonathon v. Doyon Drilling, Inc.,(fn1) construed the word "claim" used in AS 21.80.060(a)(1) to mean "an arisen right" but in AS 21.80.060(a)(1)(B) to mean "a filed pleading."(fn2) It concluded the two subsections of AS 21.80.060(a)(1) should be "read in the disjunctive" and, therefore, "the employee's benefits are covered by the AIGA if either his coverage under the Alaska Workers' Compensation Act had already arisen, or he filed a written 'claim,' before the deadline set by the liquidating court."(fn3) We conclude the board misconstrued AS 21.80.060(a)(1)(fn4) for reasons explained below. However, because the AIGA may still be liable under AS 21.80.060(a)(1)(B), and because the board should have the opportunity to take additional evidence before deciding whether the employee has a viable claim, we decline extraordinary review. In declining extraordinary review, we do not decide whether or not the AIGA is liable under AS 21.80.060(a)(1). The issue raised by the Alaska Workers' Compensation Benefits Guaranty Fund (WC Fund), (whether the "final date" in AS 21.80.060(a)(1)(B) is the final date for filing claims established in the order of liquidation or a later "bar date"), is better addressed on appeal, if appeal is taken. Factual background. The commission recites facts taken from the board's interlocutory decision, except where otherwise cited. The commission makes no independent findings of fact, and does not examine whether the facts described by the board are supported by substantial evidence in the record at this time. Edwin Simons is a service technician/mechanic.(fn5) He worked for Fairbanks Nissan until June 20, 2000. He then went to work for Stanley Nissan. Sometime in 2001, he began using hearing protection.(fn6) After going to an audiologist and learning how much hearing aids cost,(fn7) Simons filed a notice of injury and a claim with the board on August 8, 2005. He named the employer as Fairbanks Nissan, and his date of injury as June 20, 2000, the last day he was exposed to sound at Fairbanks Nissan. Procedural Hsstory. Fairbanks Nissan was insured by Reliance Insurance Co. at the time of Simons' last date of exposure. Because Reliance was in receivership, its claims were assumed by the AIGA. Northern Adjusters filed a response to the claim on behalf of the AIGA and Fairbanks Nissan.(fn8) After Simons filed a request for a hearing, the AIGA asserted that it was no longer obligated to pay covered claims against Fairbanks Nissan, as the time for filing claims had ended by court order on December 31, 2003. The AIGA also challenged the board's jurisdiction to decide whether it was obligated to pay claims under AS 21.80.060(a)(1). The board scheduled a hearing on the written record in January 2006 to consider the AIGA's defenses. Prior to the hearing, the AIGA petitioned to join the WC Fund. As a result, the record was preserved and the hearing continued to allow response to the petition to join. A hearing of the merits of Simons' claims was scheduled for May 25, 2006. The board heard the petition to join and the AIGA defense...