2008-074. University of Alaska Fairbanks and University of Alaska Statewide Office of Risk Management Appellants vs. Norman E. Hogenson Appellee.

• Case Date: February 28, 2008
• Court: Alaska

Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-074. University of Alaska Fairbanks and University of Alaska Statewide Office of Risk Management Appellants vs. Norman E. Hogenson Appellee Alaska Workers' Compensation Appeals Commission University of Alaska Fairbanks, and University of Alaska Statewide Office of Risk Management, Appellants, vs. Norman E. Hogenson, Appellee.Decision No. 074 February 28, 2008AWCAC Appeal No. 07-023 AWCB Decision No. 07-0118 AWCB Case No. 199807735Final Decision and Order Appeal from Alaska Workers' Compensation Board Decision No. 07-0118, issued by the northern panel at Fairbanks on May 9, 2007, William Walters, Chair, Debra G. Norum, Member for Industry, Damian Thomas, Member for Labor. Appearances: Constance Cates Ringstad, McConahy, Zimmerman and Wallace, for appellants University of Alaska Fairbanks, and University of Alaska Statewide Office of Risk Management. Norman E. Hogenson, pro se, appellee. This decision has been edited to conform to technical standards for publication.Commissioners: John Giuchici, Philip Ulmer,Kristin KnudsenBy: Kristin Knudsen, Chair. This is an appeal of a decision denying a petition to dismiss one of several claims as time-barred under AS 23.30.110(c). We conclude the board correctly barred the earlier claims; but a request for benefits made in the 2001 written claim and time-barred may not be revived by filing a later claim for the same benefits based on the same injury. However, to the extent different benefits are requested in a later claim, the expiration of the time-bar in the earlier claim does not affect the later claim. We conclude that the board in this case properly permitted the employee's claim for benefits based on the claimant's allegation of physician interference to survive. We note that the viability of the interference claim under the workers' compensation act was not before the board. We AFFIRM the board's decision. 1. Factual background. The commission does not make findings of fact. It provides a summary of facts for the purpose of putting the legal issues presented by this appeal in context. We cite to the record as necessary to assure the parties that we have not departed from the record. Since this appeal primarily concerns questions of law and procedure, we describe the proceedings before the board in detail. Norman Hogenson struck his head on a 2-3/4 inch conduit suspended from a low ceiling in the paint shop of the University of Alaska Fairbanks (UAF) on April 16, 1998, and reported that he had injured his neck.(fn1) He was diagnosed as having symptomatic cervical spondylosis and extensive stenosis.(fn2) Hogenson was paid temporary total disability compensation from April 29, 1998, to November 6, 1998, and from February 26, 1999 through April 13, 2000.(fn3) On April 14, 2000, UAF began paying permanent partial disability compensation in periodic amounts, stating that Hogenson's attending physician had determined he was medically stable, and a rating of permanent impairment was expected.(fn4) 2. Board proceedings. On May 8, 2000, Hogenson filed his first written claim for benefits.(fn5) He asked for a penalty on a late payment and, without asking for an adjustment to his wage basis, checked the box stating, "At the time of injury, . . . (i) Employee was injured on or after September 4, 1995, is permanently totally disabled, and wages calculated by Employer don't fairly reflect earnings during the period of disability."(fn6) In August 2000, Robert Rehbock, an Anchorage attorney, entered an appearance for Hogenson.(fn7) On August 24, 2000, UAF filed a controversion on a board-approved form of the "permanent partial impairment rating . . . received August 1, 2000," on the grounds that it had been improperly calculated.(fn8) On October 16, 2000, Mr. Rehbock filed a written claim on Hogenson's behalf for permanent total disability, permanent partial impairment, a penalty and attorney fees.(fn9) The nature of the injury was listed as "cervical and bilateral carpal tunnel."(fn10) The reason for filing the application was "Compensation Report dated 09/22/00 terminating benefits, 8/21/00 controversion notice, additional carpal tunnel impairments, and .041(k) benefits have been wrongly suspended."(fn11) UAF timely answered the claim October 24, 2000,(fn12) but did not file a controversion again until April 9, 2001, when it again controverted permanent partial impairment benefits.(fn13) Meanwhile, the parties attended a prehearing conference on December 7, 2000.(fn14) The issues listed included:

EE's 10/3/00 claim:

PTD 4/29/98

PPI

ongoing meds

eligibility evaluation for vocational rehabilitation

penalty/interest

atty fees/costs

Petition for SIME

Petition to strike ER's request for cross-exam

Affidavit of readiness for hearing filed on the 11/2/00 Petition to Strike(fn15)

The prehearing conference officer noted that Hogenson was refusing to attend an employer's medical examination by John Joosse, M.D. because Hogenson had already attended an examination by another employer physician.(fn16) UAF filed a petition to terminate benefits for refusal to attend an examination by the employer's physician, and requested payment of physician fees for the three examinations.(fn17) The parties agreed to a board hearing on Hogenson's petitions to take place in February 2001.(fn18) Before the hearing, the parties entered into an agreement that resolved two of the three petitions: UAF recognized Roy Pierson, M.D., as Hogenson's attending physician and Hogenson agreed to an evaluation by John Joosse, M.D.(fn19) The third issue resulted in an interlocutory board decision.(fn20) On April 9, 2001, UAF filed another controversion, incorporating the prior controversion, but adding that the SIME rating was defective.(fn21) On June 22, 2001, Mr. Rehbock withdrew as Hogenson's attorney.(fn22) At hearing, Hogenson described the basis of his disagreement with Mr. Rehbock:

And the university wanted me to go see this Dr. Joosse. And that was their doctor and had a right to have an exam. Well, I protested to Rehbock, and he - he said, well, you're going to turn this into a train wreck, which it did. But I wasn't going to go see a doctor that didn't have my best interests at heart. And so Rehbock withdrew.(fn23)

On June 19, 2001, Hogenson filed a claim form himself.(fn24) He stated that the "University of Alaska Fairbanks, Risk Management has stoped [sic] payment on my claim! I am requesting immediate action on this claim! And also the 25% penalty for being late!"(fn25) On this claim form, he requested the following benefits: temporary total disability from August 21, 2000 and continuing; permanent partial impairment; interest, attorney's fees and costs.(fn26) The claim was answered and controverted.(fn27) The controversion listed the benefits controverted as: "PPI, TTD, PTD, eligibility review, penalty, interest or fees."(fn28) James Hackett, a Fairbanks attorney, entered an appearance for Hogenson in August 2001(fn29) and withdrew in December 2001.(fn30) However, while Mr. Hackett represented Hogenson, the parties agreed to a Second Independent Medical Examination (SIME).(fn31) The SIME report did not adhere to board guidelines, and the parties met again to arrange for follow-up questions to the SIME physician in December 2001.(fn32) The SIME rating was also controverted.(fn33) After Mr. Hackett withdrew, no further prehearing conferences were scheduled until Hogenson filed another claim form on June 25, 2002. This claim form contained the following statement:

At this time 6/24/02: I am asking that the Permanent Partial Rating of 6/22/00 by Dr. Pierson be removed! And my by [sic] weekly benefits be reinstated; plus the 25% penalty! The reason; My employer, UAF risk management use there [sic] Dr., Dr. John Joosse, to influence my Doctor's in a negative way.(fn34)

On the reverse of the form, Hogenson checked the box for "Temporary Total Disability" and wrote below, "from June 22, 2000 through continuing."(fn35) This claim was answered,(fn36) but no further controversion was filed until November 6, 2002.(fn37) This controversion was limited to permanent partial disability benefits, and stated: "Prior controversions addressing PPI are adopted and incorporated herein."(fn38) At a prehearing conference on August 19, 2002, the issues were limited to the June 25, 2002, claim, asserting undue influence by Dr. Joosse and demanding reinstatement of temporary total disability compensation.(fn39) Hogenson stated he was trying to find an attorney to assist him.(fn40) A prehearing conference was held September 23, 2002.(fn41) The prehearing officer noted under the heading "Defenses": "Answer and controversion to claim. Denials based on EIME report and opinions of treating physicians."(fn42) The prehearing officer also noted that although UAF's attorney sent draft questions for the SIME physician to Mr. Hackett to approve, the questions were never forwarded to the physician because of Mr. Hackett's withdrawal.(fn43) UAF's attorney agreed to give them to the prehearing officer, who would send them to the SIME physician.(fn44) The prehearing officer also noted she gave a copy of an affidavit of readiness for hearing form to Hogenson, as well as a...