2007-038. Kuukpik Arctic Catering L.L.C. and Alaska National Ins. Co. Movants vs. Lily M. Harig Respondent.

Case Date:April 27, 2007
Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-038. Kuukpik Arctic Catering L.L.C. and Alaska National Ins. Co. Movants vs. Lily M. Harig Respondent Alaska Workers' Compensation Appeals Commission Kuukpik Arctic Catering, L.L.C., and Alaska National Ins. Co., Movants, vs. Lily M. Harig, Respondent.Decision No. 038 April 27, 2007AWCAC Appeal No. 06-040 AWCB Decision No. 06-0313 AWCB Case No. 200028980Memorandum Decision Motion for Extraordinary Review from Alaska Workers' Compensation Board Decision No. 06-0313 issued November 24, 2006 by the northern panel at Fairbanks, William Walters, Chairman, Jeffrey P. Pruss, Member for Labor. Appearances: Theresa Hennemann, Holmes, Weddle and Barcott, P.C., for movants Kuukpik Arctic Catering, L.L.C., and Alaska National Insurance Co. Lily Harig, pro se, respondent.Commissioners: John Giuchici, Philip Ulmer, and Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. Kuukpik Arctic Catering, L.L.C., and Alaska National Ins. Co. (Kuukpik) filed an appeal of the board's Decision No. 06-0313(fn1) and asked for a stay of the board's decision. The commission scheduled a hearing on the motion for stay. Despite notice to her address of record, and attempts to reach her by telephone, Ms. Harig did not appear at the hearing scheduled on the motion to stay, and filed no written opposition to the appeal or the motion to stay. Although Ms. Harig had not objected to the appeal, the commission chair brought to Kuukpik's attention that the board decision Kuukpik appealed was titled "interlocutory decision" and that appeals must be from final decisions. We rejected Kuukpik's argument that the board's decision on its petition to dismiss Ms. Harig's claim was a final order subject to appeal. Without excusing the late filing, we permitted Kuukpik to convert the appeal to a motion for extraordinary review.(fn2) Ms. Harig then contacted the commission to request additional time to object to the motion for extraordinary review. We granted her additional time and she filed a written objection to the motion. She also appeared and argued forcefully at the hearing against the motion for extraordinary review. Factual background and board proceedings. We summarize here the facts recited by the board in its decision for the purpose of setting the motion for extraordinary review in context. Ms. Harig reported she injured her elbow while vacuuming as a housekeeper on the North Slope on June 4, 2000. She continued to work, but developed symptoms in her shoulder. She was diagnosed with impingement syndrome and degenerative joint disease in the right acromioclavicular joint.(fn3) Her physician began to discuss possible arthroscopic surgery to "decompress" the joint in May 2002. Kuukpik sent Ms. Harig to an employer medical examination in July 2002. The examiners diagnosed chronic pain in the right shoulder, but found no objective evidence of an injury related to the reported June 4, 2002 work incident of injuring her elbow while vacuuming. They reported that any bruise or strain she may have suffered was fully resolved, she required no more treatment for the work injury, her condition was medically stable and the work injury caused no permanent impairment. Kuukpik filed a controversion of all benefits on June 25, 2002. Ms. Harig filed a claim on July 15, 2002 based on the June 4, 2000 injury. Kuukpik filed an answer and a controversion notice August 14, 2002. In a pre-hearing conference November 13, 2003, Ms. Harig amended her claim to include additional disability compensation, reemployment benefits, and more medical costs. In that conference, the pre-hearing officer ordered a Second Independent Medical Examination (SIME) pursuant to AS 23.30.095. The examiner, Dr. Gritzka, reported in February 2004 that the Kuukpik work, specifically overhead cleaning, had produced persistent symptoms and was a substantial factor in Ms. Harig's disability and need for subacromial decompression surgery. At a pre-hearing conference on April 29, 2004, the pre-hearing officer notified Ms. Harig that her claim(fn4) would be barred if a hearing was not requested within two years of the controversion. She mailed Ms. Harig a form for requesting a hearing. Ms. Harig had the decompression surgery on her right shoulder in July 2004, but did not send copies of the medical bills and records to Kuukpik's adjuster. She filed her request for hearing on June 7, 2006, almost four years after Kuukpik filed its controversion of all benefits. On June 19, 2006, Kuukpik petitioned to dismiss Ms. Harig's claim, asserting it was barred by AS 23.30.110(c). At a pre-hearing conference held July 18, 2006, the employee again amended her claim. Kuukpik filed an affidavit of readiness for hearing on its petition on July 18, 2006. The board heard the petition to dismiss on November 9, 2006. The board's decision granted Kuukpik's petition to dismiss Ms. Harig's July 15, 2002 claim as to temporary disability compensation from August 14, 2000 to August 5, 2001, permanent disability compensation due by July 15, 2002, and medical benefits to July 15, 2002; but permitted Ms. Harig's claim for compensation and benefits subsequent to July 15, 2002, "as raised in the November 13, 2003 and July 18, 2006 Prehearing Conference Summaries" to go forward to hearing.(fn5) Discussion. The commission's authority to review interlocutory orders is limited. We do not exercise that authority lightly. Extraordinary review is appropriate only in circumstances where the board's actions are so erroneous or unjust or so prejudicial to the requirements of due process that immediate review is necessary; or where postponement of review will result in injustice, unnecessary delay, significant expense or undue hardship; where immediate review may materially advance the termination of the litigation...

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