2006-012. Terry L. Smith Movant vs. CSK Auto Inc. and Royal and Sun Alliance and Wilton Adjustment Services Respondents.

• Case Date: June 13, 2006
• Court: Alaska

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-012. Terry L. Smith Movant vs. CSK Auto Inc. and Royal and Sun Alliance and Wilton Adjustment Services Respondents Alaska Workers' Compensation Appeals Commission Terry L. Smith, Movant, vs. CSK Auto, Inc., and Royal and Sun Alliance and Wilton Adjustment Services, Respondents.Decision No. 012 June 13, 2006 AWCAC Appeal No. 06-012 AWCB Decision No. 06-0054 AWCB Case No. 200106934Memorandum Decision Memorandum Decision on Motion for Extension of Time and Motion for Extraordinary Review of Alaska Workers' Compensation Board Order No. 06-0054, 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 Wilton Adjustment Services.Commissioners: Jim Robison, Philip Ulmer, Kristin Knudsen. By Kristin Knudsen, Chair: Terry Smith again asks the commission to review a board decision affirming discovery orders that the board's designee, pre-hearing officer Sandra Stuller, made in a pre-hearing conference. Smith filed his motion for extraordinary review late. We deny his motion to accept the late-filed motion for extraordinary review in view of Smith's prior experience of filing a motion for extraordinary review and litigation, his failure to demonstrate good cause for his delay, and the exceptional nature of extraordinary review. Even if the motion were filed on time, we would deny the motion for extraordinary review for reasons we describe below. 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 and Sun Alliance, and its adjuster, paid temporary total disability compensation and permanent partial disability compensation, medical benefits, and reemployment benefits to Smith. Smith entered into a partial compromise and release (settlement) agreement that was approved by the board in 2002, but Smith petitioned the board to set aside the settlement agreement. His petition to set aside the settlement agreement was denied, and the board decision denying the petition(fn1) is currently on appeal to this commission.(fn2) Smith also filed a claim for additional compensation and benefits. Smith's claim for additional compensation and benefits is still pending before the board. For purposes of that claim, as well as a third party action,(fn3) Smith sought to compel discovery of certain materials from CSK Auto. After limits were placed on his discovery in a pre-hearing conference by the board designee,(fn4) Smith appealed the designee's detailed discovery order(fn5) to the board. The board affirmed the designee's determinations as "supported by reason," "supported by substantial evidence," and "reasonably well-tailored to the actual issues in dispute."(fn6) 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.(fn7) Smith then filed for reconsideration of the board's decision. In its decision on reconsideration, the board explained 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) This decision was the subject of Smith's first motion for extraordinary review to the commission. After a hearing, we denied the motion for extraordinary review.(fn9) We noted in our decision that the board had alluded to other "wide-ranging" demands for information from Dr. Radecki by Smith,(fn10) but these demands were not raised in the pre-hearing conference and were not the subject of the order reviewed by the board and which Smith asked the commission to review. Instead, those requests (a list of 13 items) were ruled on by the board's designee in another pre-hearing conference held December 7, 2005.(fn11) Smith appealed the designee's discovery order to the board;(fn12) the matter was heard on February 16, 2006, in the same hearing as his petition to set aside his settlement agreement.(fn13) The board, finding no abuse of discretion, upheld the board designee's order in a decision issued March 3, 2006.(fn14) Smith filed a motion for extraordinary review on May 4, 2006.(fn15) The commission issued a docket notice informing him the motion was late and incomplete. Smith filed additional documents in support of his motion on May 12, 2006, including a motion to "except late filing." CSK Auto objects to the late filed motion and to the substance of the motion for extraordinary review. Arguments to the commission. Smith argues we should accept his late filed motion for extraordinary review because the decision affirming the discovery order (AWCB Decision No. 06-0054) was issued on the same day as the decision denying his petition to set aside his settlement agreement.(fn16) He requested board reconsideration of the decision denying the set-aside, but now asserts he filed a notice of appeal listing both cases because "in conjunction with his extra review as at the time of filing their was no decision in the Petition for review and employee did not want to lose his appeal rights in both decisions." Smith's notice of appeal was filed April 24, 2006; the board's decision on reconsideration of AWCB Decision No. 06-053 was issued the same day.(fn17) Smith asks us to review AWCB Decision No. 06-0054 because it is unfair that he must give information regarding his driver's license and social security number but Dr. Radecki need not do so. He argues there is an "imbalance of discovery" that must be corrected.(fn18) He argues the board's decision requires review now because the issue of what is...