2006-020. Edward Witbeck Appellant vs. Superstructures Inc. and Alaska National Insurance Co. Appellees.

• Case Date: October 05, 2006
• Court: Alaska

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-020. Edward Witbeck Appellant vs. Superstructures Inc. and Alaska National Insurance Co. Appellees Alaska Workers' Compensation Appeals CommissionEdward Witbeck, Appellant, vs. Superstructures, Inc., and Alaska National Insurance Co., Appellees.Decision No. 020 October 5, 2006AWCAC Appeal No. 06-001 AWCB No. 200119123Final Decision on Reconsideration Final Decision on Reconsideration of Alaska Workers' Compensation Appeals Commission Decision No. 014 on appeal of Alaska Workers' Compensation Board Order No. 05-0348, Anchorage Panel, by Rosemary Foster, Chairman, Andrew Piekarski, Board Member for Labor, and Linda Hutchings, Board Member for Management. Appearances: Edward Witbeck, appellant, pro se, Richard Wagg, Russell, Tesche, Wagg, Cooper and Gabbert, for appellees, Superstructures, Inc., and Alaska National Insurance Co.Commissioners: John Giuchici, Marc Stemp,Kristin Knudsen.By: Kristin Knudsen, Chair. Edward Witbeck seeks reconsideration of the commission's Decision No. 014 affirming the board's denial of his appeal from the reemployment benefits administrator's decision finding he was not cooperating with vocational rehabilitation efforts. Witbeck also asserts for the first time on reconsideration that the board hearing officer was biased and that one of the board members had a conflict of interest requiring recusal. For the reasons STATED below, the commission denies Witbeck's motion for reconsideration, but we modify our order of remand to provide additional guidance to the board as a result of our review of Witbeck's motion. Introduction. Witbeck appealed from the Alaska Workers' Compensation Board's December 28, 2005 Decision No. 05-0348. On appeal, the commission affirmed the board's decision denying Witbeck's claim for a compensation rate adjustment, as a subsequent claim barred by res judicata or, as the board considered it, a late request for reconsideration or rehearing for modification of a 2003 decision on his compensation rate. The commission affirmed the board's decision (1) upholding the administrator's decision that Witbeck was not cooperative and (2) terminating reemployment benefits. The commission also vacated the board's decision that the consultation with Dr. Bransford was not reasonable and necessary medical care because the commission concluded the board lacked substantial evidence, in light of the whole record, to support the board's findings. The commission remanded the claim to the board for further proceedings on the issue of the medical care provided by Dr. Bradford. Witbeck does not challenge the remand to the board. Witbeck requested reconsideration of the two issues decided against him by the board and affirmed by the commission. The commission ordered the motion for reconsideration to be heard by oral argument on September 5, 2006. Appeals Commissioners Giuchici and Stemp traveled to Anchorage to hear the argument; Witbeck appeared by telephone(fn1) from his home on the Kenai Peninsula and Superstructure's counsel appeared in person. Arguments presented on reconsideration. Witbeck again argued that he was cooperative with reemployment services providers and that the providers were at fault in any failure to attend meetings or to communicate. Witbeck also now claims that the board's decision to deny him a compensation rate adjustment and affirming the reemployment benefits administrator was the product of bias, and that therefore he did not receive a fair hearing. His claim of bias is based on an allegation that the hearing officer, R. Foster, had family connections to a construction firm, Foster Construction, whose employee or employees had filed workers' compensation claims against it. He also claims that board Member for Management, L. Hutchings, is connected to a firm which has workers' compensation claims against it. He argued he had been unable to obtain evidence of the basis for his claim of bias until the time of the motion for reconsideration. Superstructures argued that for the most part Witbeck was simply rearguing the points he made in his appeal. Superstructures argued that the claim of bias should have been made at the hearing, or in the original appeal, and cannot be raised for the first time in the motion for reconsideration. Superstructures also argued that Witbeck's allegations were not sufficient to be the basis for a claim...