2006-017. Terry L. Smith Movant vs. CSK Auto Inc. Royal and SunAlliance and Arctic Adjusters Inc. Respondents.

• Case Date: August 28, 2006
• Court: Alaska

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-017. Terry L. Smith Movant vs. CSK Auto Inc. Royal and SunAlliance and Arctic Adjusters Inc. Respondents Alaska Workers' Compensation Appeals Commission Terry L. Smith, Movant, vs. CSK Auto Inc., Royal and SunAlliance, and Arctic Adjusters, Inc., Respondents.August 28, 2006 Decision No. 017AWCAC Appeal No. 06-016 AWCB Decision No. 06-0134 AWCB Case No. 200106934Memorandum Decision and Order Memorandum Decision on Motion for Extraordinary Review of Alaska Workers' Compensation Board Order No. 06-0134, Fairbanks Panel, by William Walters, Chairman, Jeffrey P. Pruss, Board Member for Labor, 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 and SunAlliance, and Arctic Adjusters, Inc.Commissioners: Jim Robison, Philip Ulmer, Kristin Knudsen.By Kristin Knudsen, Chair: Terry Smith again asks the commission to review an interlocutory decision by the board regarding discovery.(fn1) After Smith sought a protective order against discovery of certain medical records, the board ordered Smith to sign releases allowing the employer access to records to 1973 of medical treatment of symptoms related to spine, hips, lower extremities, head, heart, and stroke; and, psychological and psychiatric treatment records to 1986.(fn2) Smith also sought a protective order against a psychiatric examination by an employer medical examiner under AS 23.30.095(e), which the board reserved jurisdiction to consider after it received the psychological records.(fn3) Smith asks the commission to grant extraordinary review of the board's order because he has not claimed a mental injury and therefore his psychological status is not relevant. We deny the motion for extraordinary review of the board's order regarding the psychological examination because there is, as yet, no board decision to review. We deny the motion for extraordinary review of the board's order allowing discovery of the medical records because we find the sound policy favoring appeals from final orders is not outweighed by the employee's claims of injustice. Underlying facts and proceedings. We make no findings of fact in summarizing the board's recitation of the facts.(fn4) This summary is intended to provide context to the motion for extraordinary review. On March 29, 2001, Smith injured his back by lifting boxes while working as a delivery driver. CSK Auto, Inc., the employer, paid temporary total disability compensation and permanent partial disability compensation, medical benefits, and reemployment benefits to Smith. Smith entered into a partial settlement agreement that was approved by the board in 2002.(fn5) He presently seeks additional disability compensation and medical benefits. At CSK Auto's request, Smith was examined by Patrick Radecki, M.D., a physiatrist,(fn6) on July 23, 2003. In his report, Dr. Radecki reported his suspicions that Smith suffered from a possible mental illness or disorder. He also expressed the opinion that Smith's symptoms were unrelated to his 2001 lifting injury. Following Dr. Radecki's report, CSK Auto controverted benefits, and Smith revoked all medical releases. Smith has signed no medical releases since June 4, 2004. CSK Auto's counsel asked Dr. Radecki in an August 7, 2003 letter whether the employee should be referred for a psychiatric examination, and, on August 18, 2003, Dr. Radecki responded, "Yes." The employer notified the employee on August 31, 2003 that a psychiatric evaluation with S. David Glass, M.D., was scheduled for September 29, 2003. Smith requested a protective order August 29, 2003, and at a pre-hearing conference on October 8, 2003, the parties made some form of tentative agreement, which is not described by the board. A series of disputes were litigated and, the board notes, the agreement broke down. CSK Auto renewed its requested release of the medical records on March 9, 2006. Smith filed a new petition for a protective order on March 22, 2006. CSK Auto renewed the request for a psychiatric examination on April 6, 2006 in a pre-hearing conference; Smith responded in the conference by renewing his petition for a protective order. The dispute was appealed to the board. The board's decision. In a 15-page decision and order, the board reviewed the history and position of the parties regarding discovery of the medical...