2007-026. Chena Hot Springs LLC and Alaska National Ins. Co. Movants vs. Barbara Elliott Respondent.

• Case Date: January 11, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-026. Chena Hot Springs LLC and Alaska National Ins. Co. Movants vs. Barbara Elliott Respondent Alaska Workers' Compensation Appeals Commission Chena Hot Springs, LLC, and Alaska National Ins. Co., Movants, vs. Barbara Elliott, Respondent.Decision No. 026 January 11, 2007AWCAC Appeal No. 06-037 AWCB Decision No. 06-0312 AWCB Case No. 200211911Memorandum Decision Motion for Extraordinary Review of Alaska Workers' Compensation Board Decision No. 06-0312, issued November 24, 2006 by the northern panel at Fairbanks, William Walters, Chairman and Jeffrey R. Pruss, Member for Labor. Appearances: Richard L. Wagg, Russell, Wagg, Gabbert, and Budzinski, for movants Chena Hot Springs, LLC, and Alaska National Insurance Co.; Michael J. Wenstrup, Esq., for respondent Barbara Elliott. This decision has been edited to conform to technical standards for publication.Commissioners: Jim Robison, Chris N. Johansen, and Kristin Knudsen.By: Kristin Knudsen, Chair. This motion for extraordinary review was heard on December 28, 2006.(fn1) Chena Hot Springs requests review of a decision partially granting a petition to dismiss Elliott's claims(fn2) and permitting Elliott to proceed on a claim for benefits from May 15, 2004, and continuing, based on her physician's discovery of a "new condition." We agree that the board's decision requires clarification. The board will be better able to clarify the nature of the Elliott's claim after the record has been developed. We believe that the ultimate termination of the litigation will not be advanced by extraordinary review because we anticipate that resolution of an appeal would necessarily require a remand for additional findings. Therefore, we deny the motion for extraordinary review. Factual background and board decision. Barbara Elliott was employed as a laundry worker at Chena Hot Springs. Elliott reported she injured her shoulders while dragging bags of wet towels across the floor on July 6, 2002. The employer paid workers' compensation benefits, including surgery on both shoulders, until all benefits were controverted on September 16, 2003. Elliott applied for, and began to receive, social security disability insurance. Elliott returned to her physician, Dr. Wade, in March 2004. In April 2004 an MRI scan revealed a torn rotator cuff in the left shoulder. On May 17, 2004, Dr. Wade surgically repaired the left shoulder. On April 20, 2006, Elliott filed a request for hearing. This was opposed promptly by Chena Hot Springs because Elliott had not filed a claim. On May 15, 2006, Elliott filed a claim for benefits. Chena Hot Springs petitioned to dismiss the claim as too late under AS 23.30.105(a). The board issued a decision on the petition November 24, 2006. Although the board granted the petition as to benefits claimed by the employee from September 16, 2003 through May 14, 2004, it found the employee's claim for benefits after May 15, 2004, (two years prior to the date of the claim) was not barred by AS 23.30.105(a):

The record contains no evidence after that date providing additional information concerning the employee's disablement or its relation to her work for the period between the Controversion on September 16, 2003 and Dr. Wade's treatment of a newly discovered condition in May of 2004. We find the employee waited beyond the two-year window to claim benefits for that period, and those claimed benefits are barred by AS 23.30.105(a).

However, Dr. Wade discovered a new condition in the employee's left shoulder, and treated it surgically on May 17, 2004. We find the condition identified by Dr. Wade in 2004 was latent, and potential medical and indemnity benefits related to that condition arose from the surgery of May 15, 2004. The employee filed a claim for those benefits on May 15, 2006. We find the employee's claim was filed within the two year period under AS 23.30.105(a) for benefits from May 15, 2004 and continuing. In accord with the Court's rationale in Morrison-Knudsen Co. v. Vereen (fn3) and Leslie Cutting Inc. v. Bateman,(fn4) we find that portion of the employee's claim for benefits from May 15, 2004 and continuing is not barred under AS 23.30.105(a).(fn5)

Chena Hot Springs then applied to the commission for extraordinary review, asserting the board erroneously determined that the employee had a "latent defect." Chena Hot Springs argues that postponement of review will result in unnecessary delay, significant expense, immediate review will accelerate termination of the litigation, and there is an important question of law on which there is substantial ground for difference of opinion. Elliott opposes, asserting that the board correctly applied Leslie Cutting, Inc. v.Bateman and Aleck v. Delvo Plastics, Inc.,(fn6) Discussion. When we are asked to accept an appeal on motion for extraordinary review, we must determine if, before the board's final decision on a petition or a claim, the board's actions are so erroneous or unjust, so prejudicial to the requirements of due process, so likely to otherwise evade review, or reveal our guidance is needed to resolve conflict and materially advance the termination of the litigation, that the strong policy favoring appeals from final decisions is outweighed by the compelling...