2007-030. Tom Wolford Appellant vs. David R. Hanson Appellee.

• Case Date: February 02, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-030. Tom Wolford Appellant vs. David R. Hanson Appellee Alaska Workers' Compensation Appeals Commission Tom Wolford, Appellant, vs. David R. Hanson, Appellee.Decision No. 030 February 2, 2007AWCAC Appeal No. 06-011 AWCB Decision No. 06-0064 AWCB Case No. 200418129Memorandum Decision and Order Appeal from Alaska Workers' Compensation Board Decision No. 06-0064, issued on March 23, 2006, by the southeastern panel at Juneau, Krista Schwarting, Chair, Richard Behrends, Member for Management, Jay Rhodes, Member for Labor. Appearances: A. Fred Miller, P.C., for appellant Tom Wolford, Jon Buchholdt, Buchholdt Law Offices, for appellee David R. Hanson.Commissioners: John Giuchici, Philip Ulmer, Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. The only question presented by this appeal(fn1) is whether the appellant, then a self-represented litigant, was afforded due process when the board heard a claim for compensation against him in his absence despite his efforts to reschedule the pre-hearing conference and hearing so that he could be present. We hold that in the particular circumstances of this case the appellant was not afforded due process. Only the board can decide whether Wolford or Hanson is more credible. The board did not have the opportunity to make that decision. If the board had been able to hear Wolford and Hanson together, each party cross-examining the other, the outcome may, or may not, have been different. Our concern in this appeal is that both parties should have the opportunity to allow the board to assess their credibility and their evidence. We make no findings of fact and we do not express any opinion respecting the merits of this case. Therefore, we remand the case to the board for rehearing to allow the appellant the opportunity to present his testimony in person. Factual background and board proceedings.(fn2) David Randall Hanson was a logger. Hanson's left thumb was amputated by a falling tree on October 5, 2004. He filed a claim for compensation on November 17, 2004, naming Alfred "Tom" Wolford of Thorne Bay as his employer.(fn3) Wolford wrote a letter to the board stating he did not hire Wolford and that Wolford was a "cutting contractor for the property owners."(fn4) Wolford said he did not receive any compensation from the property owners, and that he found Hanson "as a personal favor to the property owners."(fn5) We describe the proceedings in the Division of Workers' Compensation(fn6) prior to the January 17, 2006 hearing in some detail, citing to the board's record. Workers' compensation officer Bruce Dalrymple conducted a pre-hearing conference in Juneau on January 13, 2005, between Hanson and Wolford.(fn7) Dalrymple recorded the following summary of the parties' position:

David: believes he was an employee of Tom's. He was told by Tom that he (Tom) was under contract to the landowners to clear a couple of lots and Tom needed a cutter. Was told he would be hired for 3 days work at $350-400 per day. Tom told him which trees needed to be cut and which did not. Tom didn't pay him but the landowners did. He has not cashed the check.

Tom: he was not under contract to the landowners. He knew the owners and they had asked him if he knew of any cutters who would be willing to clear the lots. He said he did and, as a personal favor to the landowners, suggested David. The landowners are Jay Dilsworth and Patrick Fox.

Chair: this issue will not be settled at a prehearing. It will take a Board decision to determine if there actually was an employee/employer relationship. Advised David of his right to request a full Board hearing and will provide him with the necessary paperwork.(fn8)

There is no record of more pre-hearing conferences until after September 26, 2005, when Hanson filed an affidavit of readiness for hearing.(fn9) The same day, the division received a statement by Monte McDonald relating that Wolford "talked about small parcels of timber that needed to be cut and sold."(fn10) McDonald stated that "I assumed the timber would be purchased and sold by Tom's employer" and that he "told Tom that maybe Randy Hanson might be available and interested in falling the timber."(fn11) No certificate of service was attached to McDonald's statement indicating Hanson mailed a copy to Wolford. Dalrymple sent a letter giving notice to Hanson and Wolford that a pre-hearing conference would be held on November 23, 2005 at 10:30 a.m.(fn12) The letter contained the following statements:

The Purpose of this Conference is to frame issues, record any agreements, exchange witness lists, examine the Board's records and provide the parties with the opportunity to resolve the issues of the case.

If you are unable to attend, please notify me and the opposing parties. The conference may be rescheduled. If you live outside the Juneau area, you may participate by telephone.

On November 15, 2005, the Juneau division office received a letter from Wolford, asking that the pre-hearing conference be rescheduled until January 30, as he was in the process of acquiring an attorney.(fn13) The pre-hearing conference went ahead as scheduled with no recorded effort to contact Wolford or reschedule.(fn14) It was conducted by Kristy Donovan, a workers' compensation officer located in Anchorage.(fn15) Donovan's summary states that a hearing was "set for January 11, 2006."(fn16) It also states that "Briefs and Witness Lists must be filed with the board on January 3, 2005 [sic] and a copy must be sent to the opposing party."(fn17) Wolford wrote a letter to Donovan received by the Anchorage division office on December 6, 2005. He asked that the hearing be rescheduled for the latter part of February 2006 because he would be out of town "until latter January 2006."(fn18) He gave a new address in Kodiak, and explained that he had asked that the prehearing conference be delayed, pointing out that he had a "green...