2007-029. Loretta Tonoian Appellant vs. Pinkerton Security and ACE USA Appellees.

• Case Date: January 30, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-029. Loretta Tonoian Appellant vs. Pinkerton Security and ACE USA Appellees Alaska Workers' Compensation Appeals CommissionLoretta Tonoian, Appellant, vs. Pinkerton Security and ACE USA, Appellees.Decision No. 029January 30, 2007WCAC Appeal No. 05-007AWCB Decision No. 05-0302AWCB Nos. 200225523 and 200226202Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 05-0302, issued November 10, 2005, by the northern panel at Fairbanks, Fred G. Brown, Chairman, John Giuchici, Member for Labor, and Chris N. Johansen, Member for Management. Appearances: Loretta Tonoian, pro se appellant; Tasha Porcello, Law Office of Tasha Porcello, for appellees, Pinkerton Security and ACE USA.Commissioners: Jim Robison, Philip Ulmer,and Kristin Knudsen. This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. Loretta Tonoian reported she injured her right knee, lower back, and neck on April 23, 2002 when she slipped on some ice while working for Pinkerton Security at the National Oceanic and Atmospheric Administration site in Fairbanks. She filed a claim for benefits against Pinkerton on March 17, 2003.(fn1) Tonoian did not file a request for hearing until more than two years had passed after Pinkerton formally controverted her claim. The board dismissed her claim as denied under AS 23.30.110(c). Our review of the record reveals substantial evidence to support the board's dismissal of Tonoian's claim against Pinkerton. We affirm the board's decision. Factual background. Tonoian was initially disabled in the course of her employment for the U.S. Postal Service. She suffered moderate to severe arthritis, and was given a right knee replacement in 1999 as a result of injuries received during her postal employment. In October 2001, she obtained employment as a security guard for Pinkerton, eventually transferring to the NOAA site in Fairbanks. She testified she slipped on some ice while performing her rounds April 23, 2002, struck her head on the corner of the building, and her back on the stair, her knee buckling under her. On April 30, 2002, Pinkerton lost the contract to provide security services at the NOAA site, but Tonoian continued to be employed as a security guard for the successor contractor. Tonoian requested medical leave from her employment in October 2002 in order to obtain surgery she believed would be covered by her federal workers' compensation benefits. She has not worked since. Board proceedings. Tonoian filed a notice of injury dated January 27, 2003, received by the Division of Workers' Compensation on February 11, 2003.(fn2) On March 17, 2003, Tonoian filed a claim against Pinkerton for compensation for "cervical, head, knee, and aggravated lower back injury."(fn3) Pinkerton controverted all benefits, challenging the causal relationship of the injury to the employment, on May 2, 2003.(fn4) On May 16, 2003, Pinkerton also filed an answer to the employee's claim.(fn5) Paul Eaglin entered an appearance as Tonoian's attorney on May 7, 2003.(fn6) He attended a pre-hearing conference on June 12, 2003 with Tonoian(fn7) and he attended Tonoian's deposition on July 8, 2003.(fn8) He withdrew on October 1, 2003, stating that Tonoian "is aware of responsibility for her own case."(fn9) Robert Rehbock filed an entry of appearance on behalf of Tonoian on January 30, 2004.(fn10) He negotiated a complete settlement of Tonoian's claim against Pinkerton that was signed by Tonoian and the other parties and submitted to the board for approval on November 29, 2004.(fn11) Before the board approved the settlement, Tonoian announced she did not want to settle her claim.(fn12) She testified she had called her attorney and sent him a fax "with 17 different changes and he didn't do it."(fn13) On January 24, 2005, Robert Rehbock withdrew as Tonoian's counsel.(fn14) Shortly afterward, on February 1, 2005, Pinkerton's attorney sent the board a letter stating that she understood "Ms Tonoian withdrew the Compromise and Release after it was signed by all parties and filed with the board" without notifying Pinkerton.(fn15) Tonoian also had a claim against Guardian Security, the successor contractor to Pinkerton. On January 28, 2005, the pre-hearing officer sent Tonoian a notice of a March 1, 2005 pre-hearing conference in the claim against Guardian.(fn16) A file note indicates that, at a March 1, 2005 pre-hearing conference, the parties agreed that the Pinkerton claim should be joined with the Guardian claim and that another pre-hearing conference would be scheduled in April.(fn17) On March 1, 2005, the pre-hearing officer sent Tonoian, Guardian and Pinkerton a notice of pre-hearing conference scheduled for April 6, 2005.(fn18) There is no record this conference was held. However, a pre-hearing conference was held April 28, 2005, by the hearing officer, Fred G. Brown.(fn19) There is no note in the record whether Tonoian requested a hearing in the April 28, 2005 conference or that she was provided a form to request a hearing. The next pre-hearing conference was held July 14, 2005.(fn20) The officer who conducted the conference, Sandra Stuller, noted that Pinkerton's attorney asserted a defense based on the AS 23.30.110(c) time-bar because Tonoian failed to file a request for hearing within two years of the April 30, 2003 controversion.(fn21) Tonoian's response at the pre-hearing conference is not noted, but on August 9, 2005, she filed an affidavit of readiness for hearing.(fn22) On July 28, 2003, Tonoian's deposition was taken by Guardian. Tonoian testified that she did not recall seeing controversion notices and that "most of the time when [she] got stuff from the lawyers, I just put it in the mail to him [her attorney]."(fn23) She said, "I didn't even open them. I'd just put them in an envelope and send them to him."(fn24) Regarding the settlement agreement with Pinkerton, Tonoian testified:

I called the workmen's comp board and told them I was pulling it back and I didn't want to sign this because I had another physical and I didn't like what the doctor had said there. And -and that I - I wanted to go forward.

Q. Do you recall who you talked to?

A. I think I talked to Sandy.

Q. You told Sandy Stullar you wanted to go forward?

A. Uh-huh.

Q. Did she send you any paperwork?

A. She said she was doing a pre-hearing because Guardian was - hadn't had a pre-hearing is how I understood it.(fn25)

Tonoian also testified that the only conversation she had with Ms. Stuller was the one she had in late December 2004 or early January 2005 when she "pulled" the settlement agreement with Pinkerton - until the pre-hearing conference when, she said, "I found out that I was supposed to do that hearing thing, that I had a limit."(fn26) The board held a hearing on whether AS 23.30.110(c) required dismissal of Tonoian's claim against Pinkerton on October 13, 2005. Tonoian was the only witness. At the hearing Tonoian testified as follows:

I didn't know about all this stuff. I gave all the stuff to the attorney. The attorney got all that stuff and

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