2007-033. Dr. Edward Barrington Appellant vs. Alaska Communications Systems Group Inc. Liberty Mutual Insurance Co. and Noelle E. Williams Appellees.

• Case Date: February 12, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-033. Dr. Edward Barrington Appellant vs. Alaska Communications Systems Group Inc. Liberty Mutual Insurance Co. and Noelle E. Williams Appellees Alaska Workers' Compensation Appeals CommissionDr. Edward Barrington, Appellant, vs. Alaska Communications Systems Group, Inc., Liberty Mutual Insurance Co., and Noelle E. Williams, Appellees. Decision No. 033February 12, 2007 AWCAC Appeal No. 06-015 AWCB Decision No. 06-0080AWCB Case No. 200306612Final Decision Appeal from the final decision of the Alaska Workers' Compensation Board, Decision No. 06-0080 issued April 14, 2006, and on reconsideration Decision No. 06-0116, issued May 11, 2006, by the south-central panel at Anchorage, Darryl Jacquot, Chairman, and Stephen T. Hagedorn, Member for Industry. Appearances: William J. Soule, Law Office of William J. Soule, for appellant Edward Barrington, D.C.; Jeffrey D. Holloway, Holmes Weddle and Barcott, P.C., for appellees Alaska Communications Systems Group, Inc., and Liberty Mutual Ins. Co.; Robert Rehbock, Rehbock and Rehbock, for appellee Noelle E. Williams.(fn1)Commissioners: Philip Ulmer, Jim Robison,and Kristin Knudsen. This decision has been edtted to conform to technical standards for publication. By: Kristin Knudsen, Chair. Noelle Williams settled her workers' compensation claim against her employer, Alaska Communications Systems Group, Inc., in an agreement approved by the Alaska Workers' Compensation Board. The settlement resolved "all disputes among the parties with respect to medical and related transportation costs, compensation rate, compensation for disability . . . penalties, interest, reemployment benefits, and AS 23.30.041(k) benefits." After the settlement was approved, Edward Barrington, D.C., filed a claim against the employer for medical costs associated with an impairment examination and neurological testing. The board denied the claim because the employer's liability was "contractually waived" in the settlement agreement. Dr. Barrington appealed, asserting he was denied due process of law because payment for his services was waived in a board-approved settlement agreement to which he was not a party. We conclude that Alaska's workers' compensation laws establish employer liability for injury to the employee, and that the injured employee has the right to discharge the employer's liability for the injury without first joining as parties all persons who may have an interest in the outcome in the employee's claim. Because Dr. Barrington's common law right to a collection action against the employee was not waived, or barred by the workers' compensation act, he was not denied due process. For the reasons set out below, we affirm the board's decision. Factual background. Noelle Williams, a collections representative for Alaska Communications Systems Group (ACSG), reported an occupational injury to her left arm, elbow, and hand on May 1, 2003.(fn2) ACSG controverted payment of medical benefits (chiropractic care) on December 4, 2003.(fn3) On February 17, 2004, the employer controverted all further "active treatment."(fn4) Williams filed a claim for permanent partial impairment compensation and medical benefits on May 4, 2004.(fn5) ACSG filed an answer(fn6) and formal controversion notice.(fn7) Among other assertions, ACSG denied that Williams had any permanent impairment attributable to a work injury based on an employer medical examiner report that Williams had no permanent impairment.(fn8) After stipulating to a board ordered second independent medical examination under AS 23.30.095(k),(fn9) the parties proceeded toward hearing.(fn10) In order to establish she had a permanent partial impairment, Williams obtained a referral from her physician for an impairment examination.(fn11) Dr. Barrington examined her November 18, 2004.(fn12) He rated her impairment as a result of the shoulder injury at 17 percent of the whole person.(fn13) Dr. Barrington also performed limited nerve conduction studies on November 23, 2004.(fn14) The board-appointed medical examiner's report was not favorable to Williams.(fn15) At a pre-hearing conference on March 17, 2005, Williams and ACSG agreed to a hearing date in August 2005, and also agreed to discuss settlement.(fn16) Shortly afterward, Williams settled her claim for compensation with ACSG.(fn17) The agreement provided that in return for a full release of liability for all past and future benefits under the workers' compensation act, ACSG would pay Williams $7,500.(fn18) The agreement also provided that Williams would indemnify ACSG against any claim for medical benefits against ACSG by medical providers.(fn19) The board approved the agreement on May 6, 2005.(fn20) Board proceedings on Barrnngton's caaim. On July 5, 2005, Dr. Barrington filed a workers' compensation claim for $950 in medical benefits, alleging "this patient was legally referred to our office and due to a controversion our PPI [permanent partial impairment] exam was denied and not paid."(fn21) An answer was filed July 7, 2005(fn22) with a copy of the formal controversion of the claim (mistakenly dated February 17, 2004) on the grounds that the claim was settled by agreement.(fn23) At a pre-hearing conference September 7, 2005, Williams's counsel stated the debt to Dr. Barrington had been discharged in Williams's bankruptcy, which she filed after the settlement was approved; Dr. Barrington stated that his claim was against the employer, ACSG.(fn24) A hearing was scheduled for March 22, 2006 "on the issue of Dr. Barrington's medical costs in the amount of $1,980."(fn25) At the board hearing, Dr. Barrington stated he performed a "test and examination of the patient" and that he was not requesting payment for treatment.(fn26) He knew Williams was "controverted for treatment," but it was his understanding that "testing was not controverted, just treatment."(fn27) When Williams settled her claim, he said, "I had not really had an opportunity at that time to - to go through the process to see about getting payment for my services."(fn28) He also testified:

I had talked to the patient's attorney, Mr. Rehbock, who had indicated to me that my claim was going to be included with Ms. Marshall's claim, and that, I think, [was] the reason I hesitated a month or two in - in trying to open my own claim for - for payment on this. As far as the bankruptcy is - is concerned, I was aware that she had filed bankruptcy but in my - in my experience, usually my bills are not paid on a bankruptcy hearing so I - I admit I did not pursue that avenue.(fn29)

The only evidence Dr. Barrington introduced at the hearing was his testimony. He presented no evidence on the relationship between the injury to Williams and the employment by ACSG. ACSG argued its liability for Dr. Barrington's services was discharged in the settlement approved by the board on May 6, 2005.(fn30) Although Williams and her husband filed for bankruptcy protection on May 26, 2005, Dr. Barrington had other avenues to procure payment of his services, including his remedies in federal bankruptcy court.(fn31) He failed to pursue them, so the debt owed for his services was extinguished September 9, 2005, by the federal bankruptcy court.(fn32) It would be contrary to federal bankruptcy law for the board to issue an order reestablishing that debt.(fn33) Finally, ACSG argued that the settlement was sufficient for Williams to satisfy Dr. Barrington's debt, so it was Williams's responsibility to pay for his services.(fn34) The board's original decision. In its summary of the evidence, the board reviewed the "essential facts," incorporating those recited in the settlement agreement approved by the board.(fn35) The board noted that the employer had controverted "any additional medical treatment" and "asserted compensability and notice defenses."(fn36) The board described the settlement agreement and noted that the proceeds of the settlement had been listed in the bankruptcy filing as an asset and the chiropractic medical care as an unsecured creditor or liability.(fn37) Finally, the board briefly described Dr. Barrington's claims.(fn38) The board reasoned that its ability to adjudicate disputes was limited to "explicit adjudicatory authority" granted by statute.(fn39) Equitable powers were granted "only as necessarily incident" to exercise of statutory authority.(fn40) The board then stated:

We find Dr. Barrington is requesting the employer/insurer to pay for services that it and the employee contractually waived in the May 6, 2005 CandR. Dr. Barrington was not a party to the action until he filed his July 2005 claim. We find Dr. Barrington's recourse is within the civil courts against Ms. Williams. Unfortunately for Dr. Barrington, it appears liabilities may have been discharged in bankruptcy. We conclude that Dr. Barrington's claim, in this forum, must be denied and dismissed.(fn41)

The board's decision on reconsideration. Dr. Barrington filed a timely petition for reconsideration of the board's order.(fn42) He argued that under Sherrod v. Mun'lctpatttY of Anchorage,(fn43) he should have been joined as a real party in interest before the settlement because he had a right to relief based on his provision of services that were not controverted prior to his providing the services.(fn44) Williams responded to the petition by stating that the settlement could not be held to discharge the employer's...