2006-021. Alaska Airlines and Eberle Vivian Appellants vs. Melanie Nickerson Appellee.

• Case Date: October 19, 2006
• Court: Alaska

Alaska Workers Compensation Decisions 2006. Workers' Compensation Appeals Commission 2006-021. Alaska Airlines and Eberle Vivian Appellants vs. Melanie Nickerson Appellee Alaska Workers' Compensation Appeals Commission Alaska Airlines and Eberle Vivian, Appellants, vs. Melanie Nickerson, Appellee.Decision No. 021 October 19, 2006AWCAC Appeal No. 06-009 AWCB Decision No. 06-0057 AWCB Case No. 199911086Memorandum Decision and Order Memorandum Decision and Order on Appeal from Alaska Workers' Compensation Board Decision No. 06-0057, Northern Panel at Fairbanks issued March 3, 2006, by Fred G. Brown, Chairman, and Chris Johansen, Member for Management. Appearances: Richard Wagg, Russell, Tesche, Wagg, Cooper and Gabbert, for appellants Alaska Airlines and Eberle Vivian; Melanie Nickerson, pro se, appellee.Commissioners: Marc Stemp, Jim Robison, and Kristin Knudsen.By: Kristin Knudsen, Chair. Alaska Airlines appealed the award of additional compensation and medical benefits to Melanie Nickerson on the grounds that her claim for permanent partial disability compensation and vocational reemployment benefits were barred by AS 23.30.105(a) and that she failed to file an affidavit of readiness for hearing within two years of the date of controversion of her claim as provided by AS 23.30.110(c). Alaska Airlines also challenged the sufficiency of the evidence to support an award of continuing medical benefits. At oral argument before the commission on October 6, 2006, Alaska Airlines withdrew its appeal based on AS 23.30.105(a) because Nickerson's attorney had recorded an amendment of her first claim in a pre-hearing conference summary. After careful review of the record, we find there are inadequate findings of fact to decide this appeal. We REMAND this case to the board for further findings and we RETAIN JURISDICTION to decide the appeal once the board has made its findings of fact. Factual background and proceedings before he board. When she was 23 years old, Nickerson was hired by Alaska Airlines in December 1996 to work as a customer service agent in Fairbanks, Alaska.(fn1) She injured her back when she picked up a customer's bag and twisted to put it on the conveyor belt on June 17, 1999.(fn2) She returned to work part time for an undetermined time. She later moved to Sandy, Oregon, where she lives with her four children.(fn3) Nickerson has not returned to work with Alaska Airlines. Alaska Airlines paid medical benefits and temporary disability compensation until November 28, 2000.(fn4) Before compensation was terminated, on May 22, 2000, Nickerson filed a Workers' Compensation Claim she dated May 17, 2000.(fn5) She asked for temporary total disability compensation from June 17, 1999 to October 1999, temporary partial disability compensation thereafter through the present, medical costs, penalties, and interest.(fn6) Alaska Airlines controverted the claim for temporary total disability compensation after October 26, 1999; temporary partial disability compensation after March 31, 2000; and the claim for penalties, based on a report by Dr. Brockman.(fn7) A pre-hearing conference was held June 27, 2000. Nickerson stated then that she believed all medical bills had been paid, but she was still on light duty.(fn8) A second pre-hearing conference was held August 8, 2000.(fn9) Nickerson was late appearing for the conference but she reported she had sent her time sheets to Alaska Airline's attorney.(fn10) Alaska Airlines noted it may schedule another Employer Medical Examination (EIME).(fn11) Alaska Airlines did schedule another employer medical examination, which was done by Dr. Chaplin on September 20, 2000.(fn12) After examining Nickerson, he stated:

I believe she has recovered from the sprain of the lumbosacral spine and there is no orthopedic explanation for her continued unrelenting pain at this time. It is felt that she specifically does not have any neurological deficits. She does not have evidence of injury and as such there is no specific reason for continued complaints of pain. . . . [S]he is considered to be medically stable.

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There is no indication of permanent impairment using the American Medical Association, Guides to the Evaluation of Permanent Impairment, Fourth Edition unrevised.

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The only further treatment would be a self-directed exercise program in order to improve her physical conditioning.(fn13)

Based on this report, Alaska Airlines issued a controversion on December 12, 2000 of temporary partial disability compensation, temporary total disability compensation, permanent partial impairment compensation, and medical treatment.(fn14) However, it was July 20, 2001 before a third pre-hearing conference was scheduled, and then Nickerson failed to appear.(fn15) Alaska Airlines' attorney appeared, reported that there were "issues for an SIME," and agreed to initiate the SIME process.(fn16) In the next pre-hearing conference, September 5, 2001, the parties (Nickerson was present) stipulated to the SIME.(fn17) The SIME was done by Dr. Greenwald. The parties agreed that certain questions were not fully answered by his report, and in a pre-hearing on December 11, 2001, they agreed to put the additional questions to him.(fn18) On March 13, 2002 a pre-hearing conference was attended by Phyllis LaVita,(fn19) a representative of Kalamarides and Lambert, a law firm that entered an appearance on Nickerson's behalf.(fn20) Nickerson's claim was amended to include both permanent partial impairment compensation and vocational reemployment benefits.(fn21) It was also noted that "settlement negotiations may be in place."(fn22) Without explanation, Kalamarides and Lambert withdrew from representing Nickerson on April 15, 2002.(fn23) On August 19, 2002, Alaska Airlines controverted medical benefits.(fn24) Nothing further happened in Nickerson's claim until March 7, 2003, when she filed an Affidavit of Readiness, indicating her readiness to proceed to hearing on her May 17, 2000 claim.(fn25) Alaska Airlines' attorney filed an "affidavit of limited opposition to affidavit of readiness" on March 18, 2003 requesting a pre-hearing conference be scheduled so that a convenient hearing date could be set.(fn26) Although a pre-hearing conference was scheduled for April 15, 2003,(fn27) it was not held.(fn28) Nickerson filed a second Workers' Compensation Claim on January 25, 2005.(fn29) On the 2005 Claim form, she asked for permanent partial impairment compensation, medical costs, and an unfair controversion penalty.(fn30) Alaska Airlines answered asserting a defense based on AS 23.30.105(a) and AS 23.30.110(c)(fn31) and filed a controversion of all benefits on February 23, 2005.(fn32) A pre-hearing conference was scheduled on March 9, 2005. At the pre-hearing conference, Alaska Airlines asserted defenses "as in all prior answers and controversions in the board file."(fn33) The parties agreed to discuss settlement and if settlement was unlikely a hearing date would be set at the next pre-hearing conference.(fn34) Settlement was not reached, and at a pre-hearing on May 2, 2005, the "parties agreed to an oral hearing on July 21, 2005."(fn35) At the hearing July 21, 2005, the board limited the issue to "Whether the employee's claim for workers' compensation benefits should be denied based on the employer's affirmative defenses of AS 23.30.105(a) and AS 23.30.110(c)?"(fn36) In an Interlocutory Decision, the board decided that Nickerson had filed a claim within the two year period described in AS 23.30.105(a)(fn37) and that, although the employee failed to file an affidavit of readiness on time, "the employer waived its right to require the employee to file an Affidavit of Readiness at the . . . 2001 prehearing conferences, in which the parties agreed to proceed through the SIME process."(fn38) The board found "the employee's failure to request a hearing thereafter does not amount to a forfeiture under Section 110(c)."(fn39) After the interlocutory order was issued, another pre-hearing conference was held.(fn40) At this conference, both claim forms were listed, amendments noted, and a hearing on the merits was set for January 12, 2006.(fn41) At the hearing, Nickerson was the only witness to testify. The board decided the employee had presented sufficient evidence to attach the presumption of compensability to her claim, the employer rebutted it with substantial evidence, and that "based on the medical opinions of Dr. Joosse and Greenwald, that the employee continues to experience residual symptoms from her work injury, and that she cannot continue to lift heavy objects, and she needs retraining, we find the employee has proven her case by a preponderance of the evidence."(fn42) However, the board found Nickerson had not presented "clear and convincing" evidence that she was not medically stable, and so denied her claim for further temporary...