2007-042. Nghi Kim Appellant vs. Alyeska Seafoods Inc. and Alaska National Insurance Co. Appellees.

• Case Date: May 22, 2007
• Court: Alaska

Alaska Workers Compensation Decisions 2007. Workers' Compensation Appeals Commission 2007-042. Nghi Kim Appellant vs. Alyeska Seafoods Inc. and Alaska National Insurance Co. Appellees Alaska Workers' Compensation Appeals Commission Nghi Kim, Appellant, vs. Alyeska Seafoods, Inc. and Alaska National Insurance Co., Appellees.Decision No. 042May 22, 2007AWCAC Appeal No. 06-026AWCB Decision Nos. 06-0202, 06-0227AWCB Case No. 200215576Final Decision Appeal from Alaska Workers' Compensation Board Decision No. 06-0202, issued July 21, 2006, by the southcentral panel at Anchorage, Rebecca Pauli, Chair, and S. T. Hagedorn,(fn1) Member for Industry, and Decision No. 06-0227 on reconsideration, issued August 16, 2006, by the southcentral panel at Anchorage, Rebecca Pauli, Chair, and S. T. Hagedorn, Member for Industry. Appearances: Thaddeus D. Sikes, Law Offices of James R. Walsh, for appellant Nghi Kim. Kara Heikkila, Holmes Weddle and Barcott, P.C., for appellees Alyeska Seafoods, Inc., and Alaska National Insurance Co.Commissioners: Philip Ulmer,Jim Robison,and Kristin Knudsen. This decision has been edtted to conform to technical standards for publication. By: Kristin Knudsen, Chair. The issue presented by this appeal is whether a claimant's attorney requested a hearing so as to toll the two-year time-bar of AS 23.30.110(c). Nghi Kim's workers' compensation claim was controverted by his employer on December 17, 2003. His attorney, James R. Walsh, did not file a request for hearing. Instead, his associate, Mr. Sikes, faxed the board for a "continuance under AS 23.30.110 for the purposes of further discovery and preparation of this case" two days before the AS 23.30.110(c) time-bar expired December 17, 2005. Alyeska Seafoods, Kim's employer, petitioned the board to dismiss Kim's claim on January 3, 2006 and filed a request for hearing on its petition on January 24, 2006. The board granted the employer's petition, holding that Kim's motion for continuance was insufficient to constitute a timely request for hearing. On reconsideration, it affirmed its prior decision. We agree that the request for continuance was not sufficient to be a timely request a hearing. We therefore affirm the board's decisions. Factual background and board proceedings. Kim reported on August 2, 2002 that he injured his back while working at a processing plant in Unalaska on February 25, 2002.(fn2) He filed his report of injury with the Washington Department of Labor and Industries, which denied his claim.(fn3) However, his employer, Alyeska Seafoods, filed a notice of occupational injury with the Alaska Workers' Compensation Board on August 29, 2002.(fn4) Alyeska Seafoods issued a controversion of all benefits on the grounds that the alleged injury had not been reported within 30 days and that Kim had voluntarily left his employment without informing Alyeska Seafoods of an injury.(fn5) All benefits were again controverted on October 23, 2003, on the grounds that compensation was barred under AS 23.30.100 for failure to report an injury, and that Kim did not seek treatment for back pain until April 22, 2003, more than 30 days after he left his employment.(fn6) Kim, who lives in Washington, obtained an attorney who filed a claim with the Alaska Workers' Compensation Board on his behalf on November 21, 2003.(fn7) He sought temporary disability compensation from February 26, 2002, permanent partial impairment compensation, medical costs, transportation, penalty, interest, determination of unfair controversion, and attorney fees and costs.(fn8) The claim was promptly answered(fn9) and controverted(fn10) on December 17, 2003. The controversion recited that all benefits were controverted on grounds that compensation was barred under AS 23.30.100 for failure to report an injury, that Kim did not complain of or seek treatment for back pain until April 22, 2003, that no medical documentation had been received supporting disability, and, there was no evidence of a permanent impairment rating.(fn11) On February 11, 2004 a pre-hearing conference was conducted by workers' compensation officer Gaal.(fn12) Kim's attorney, James Walsh, attended by telephone.(fn13) Officer Gaal specifically undertook to mail Mr. Walsh a form, referred to as an "ARH," to request a hearing. Mr. Walsh agreed to provide further information regarding the claim. However, the record contains no further communication by Mr. Walsh or his firm with the board or workers' compensation division until December 15, 2005. The record contains no medical summary forms(fn14) with medical records filed by Mr. Walsh in the interim between February 11, 2004 and December 15, 2005. Almost all of the medical records contained in the record were filed by Alyeska Seafoods.(fn15) On December 15, 2005, Kim's attorney faxed a "Motion for Continuance, Declaration in Support of Claimant's Motion for Continuance, and Certificate of Service/Mailing" to the division.(fn16) The Motion for Continuance requested the board to grant a "continuance pursuant to AS 23.30.110 for the purpose of further discovery and preparation of this case."(fn17) In his affidavit, Kim's attorney said, "The Claimant is not ready for hearing and needs more time to prepare his case."(fn18) On January 3, 2006, the attorney for Alyeska Seafoods filed a petition to dismiss Kim's claim under AS 23.30.110(c).(fn19) In its supporting memorandum(fn20) Alyeska Seafoods objected to the "Motion for Continuance" as "procedurally improper," outside the plain meaning of the statute, and "contrary to its purpose."(fn21) Kim's attorney responded by a faxed letter to the board on January 23, 2006, stating that Kim was not ready for hearing for a number of reasons and that the board should "toll the 2-year time-bar and provide additional time for Mr. Kim to prepare his case."(fn22) Alyeska Seafoods filed an affidavit of readiness for hearing on its petition.(fn23) In a March 16, 2006 pre-hearing conference, the parties agreed to a May 3, 2007 hearing on the written record on the petition to dismiss;(fn24) however, on June 1, 2007 the board requested oral argument.(fn25) Arguments presented to the board. At oral argument, the board questioned Mr. Sikes, the associate of James R. Walsh who appeared telephonically at the hearing as Kim's attorney. The board asked Mr. Sikes if he had filed an affidavit of readiness [for hearing] on his motion for a continuance and he responded that he had not.(fn26) The board asked Mr. Sikes if he had opposed the petition to dismiss, and he responded that the letter titled "Claimant's Hearing Brief on Motion to Continue"(fn27) was his response. Mr. Sikes stated he wished the motion to continue to be treated as "a constructive request for a hearing."(fn28) Alyeska Seafoods argued that Kim failed to participate in discovery, failed to make progress in his claim, and failed to file a request for hearing within two years of the employer's controversion of his claim. Alyeska argued that the excuses presented by Kim's attorney amount to a general lack of readiness to proceed; an excuse rejected in Tipton v. ARCO Alaska, Inc.,(fn29) Because the point of Kim's Motion for Continuance is that he does not want a hearing and is not ready for one, Alyeska argued, it cannot be reasonably construed as a request for a hearing. Therefore, under AS 23.30.110(c), Kim's claim should be dismissed. Kim argued that the motion to continue was a "constructive request" for a hearing; a writing that should be interpreted as a request for a hearing because it is a request to continue the process of preparing for a hearing. Kim argued that the regulation requiring an affidavit of readiness for hearing as the means of requesting a hearing made compliance with section 110(c) impossible, if the affiant could not swear that he was ready. Therefore, his claim should not be dismissed and, instead, he should be given more time to prepare. The board decisions. The board found that the record was clear that the employee failed to...