2007-039. Mary I. Thoeni Appellant vs. Consumer Electronic Services and Alaska National Insurance Co. Appellees.

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

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-039. Mary I. Thoeni Appellant vs. Consumer Electronic Services and Alaska National Insurance Co. Appellees Alaska Workers' Compensation Appeals Commission Mary I. Thoeni, Appellant, vs. Consumer Electronic Services and Alaska National Insurance Co., Appellees.Decision No. 039April 30, 2007AWCAC Appeal No. 07-002 AWCB Decision No. 06-0327 AWCB Case No. 200005049MMemorandum Decision and Order Memorandum Decision and Order on motion to dismiss appeal from Alaska Workers' Compensation Board Decision No. 06-0327, issued December 12, 2006, by the south-central panel at Anchorage, Fred G. Brown, Chairman, Robert Morigeau, Member for Labor, and H. Bardie Scarbrough, Member for Industry. Appearances: Mary I. Thoeni, appellant, pro se. Timothy A. McKeever, Holmes, Weddle and Barcott, PC, for appellees, Consumer Electronic Services and Alaska National Insurance Co.Commissioners: Stephen T. Hagedorn, Jim Robison, and Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. On March 30, 2007, the commission heard oral argument from Mary Thoeni and appellees' counsel, Timothy McKeever, on a series of motions: appellant's motion to accept her late-filed appeal, appellees' motion to dismiss the appeal, appellant's motion to waive transcript or in the alternative for preparation of a transcript at public expense, and, appellees' motion to require preparation of a transcript. The appellees concede that Thoeni's initial notice of appeal was timely.(fn1) For reasons we explain below, we conclude that jurisdiction over Thoeni's appeal remains in the Superior Court. We stay all proceedings in this appeal to allow Thoeni to file a motion to resume proceedings in her Superior Court appeal, so the Superior Court may determine what part of Thoeni's appeal, if an, is without Superior Court jurisdiction and therefore within the scope of the commission's authority. Factual background and prior proceedings. The history of proceedings in Thoeni's workers' compensation case is complicated, and we do not attempt to review it in detail here. Thoeni reported two injuries: a March 27, 2000 fall at work resulting in left knee injury; and, an October 9, 2000 chest pain incident. The employee filed claims for different benefits for both of these injuries. In September 2001, she filed claims for depression and insomnia related to the pain of her injuries. All these claims were heard by the board in September 2002 and a decision was issued on October 17, 2002.(fn2) Thoeni appealed the board's decision to the Superior Court.(fn3) The employer petitioned for reconsideration. The board issued a decision on reconsideration(fn4) which was also appealed to the Superior Court and joined in Superior Court No. 3AN-02-12246 Civil. Thoeni also filed a new claim for benefits from her March 2000 injury on December 12, 2002 seeking substantially similar benefits to those she sought in her previous claims. The board issued an order on legal costs and fees in 2003.(fn5) The Superior Court ruled on the appeal on March 17, 2005. The Superior Court affirmed the board in part, reversed in part:

Based on the record before the superior court, the Board's following decisions were not supported by substantial evidence:

1. That Ms. Thoeni's knee injury was medically stable from October 9, 2000 through November 2, 2000; and

2. That Ms. Thoeni forfeited her right to TTD benefits from November 26, 2001 through May 30, 2002.

In all other respects the Decisions dated October 17, 2002 and November 14, 2002 are affirmed.(fn6)

The appellees sought reconsideration and Judge Christen issued a "Ruling on Reconsideration" that concluded:

The issues for which Appellees sought reconsideration should be raised below, so that the Board may clarify its findings. The court remands this matter to the Board for proceedings consistent with this Order and the Ruling on Appeal dated March 17, 2005.(fn7)

Thoeni appealed Judge Christen's decisions to the Supreme Court. The Supreme Court treated the improperly brought appeal as a petition for review and granted review.(fn8) She also filed a new claim for benefits based on the same injuries on March 27, 2005. In July 2005, the board held a two-day hearing to consider issues relating to the remand, petitions to dismiss the employee's claims, the employee's various claims, and other petitions.(fn9) The board required additional time to review the record, so the record was not closed until November 15, 2006.(fn10) Meanwhile, it appears that discovery disputes had arisen and the board took up a number of discovery issues in August 2005 when it considered Thoeni's appeal of a board designee's order to sign releases. The board's September 26, 2005 interlocutory decision...