2008-084. Alcan Electric and SeaBright Insurance Co. Movants vs. Alan James,Respondent.

• Case Date: July 18, 2008
• Court: Alaska

Alaska Workers Compensation Decisions 2008. Workers' Compensation Appeals Commission 2008-084. Alcan Electric and SeaBright Insurance Co. Movants vs. Alan James,Respondent Alaska Workers' Compensation Appeals Commission Alcan Electric and SeaBright Insurance Co., Movants, vs. Alan James,RespondentDecision No. 084July 18, 2008AWCAC Appeal No. 08-015 AWCB Decision No. 08-0086AWCB Case No. 200400897Final Decision Motion for Extraordinary Review of Alaska Workers' Compensation Board Interlocutory Decision No. 08-0086 issued on May 13, 2008, by northern panel members William Walters, Chair and Jeffrey P. Pruss, Member for Labor. Appearances: Robin Jager Gabbert and Merrilee Harrell; Russell, Wagg, Gabbert, and Budzinski for the movants, Alcan Electric and SeaBright Insurance Co. Robert M. Beconovich, Esq. for the respondent, Alan James. Commission proceedings: Oral argument on Motion for Extraordinary Review presented on June 20, 2008.Commissioners: Stephen T. Hagedorn, Jim Robison, Kristin Knudsen.This decision has been edited to conform to technical standards for publications. By: Kristin Knudsen, Chair. 1. Introduction. The movants, Alcan Electric and SeaBright Insurance Co., filed a petition with the board to dismiss Alan James's workers' compensation claim because his claim had expired under AS 23.30.110(c). They also filed a petition to hear the petition to dismiss before the hearing on the merits of the claim. Workers' Compensation Officer Kokrine denied the petition and Alcan Electric appealed to the board. The board affirmed Officer Kokrine's decision not to hear Alcan Electric's petition to dismiss separately, before the hearing on the merits of James's workers' compensation claim. The movants now ask the commission to grant extraordinary review of the board's denial of the request to schedule the hearing on the petition to dismiss before the hearing on the claim merits. The movants assert that they are denied due process because Officer Kokrine failed to provide reasons for the denial. The movants also assert that the board failed to apply the proper standard of review to Officer Kokrine's decision. Finally, the movants assert that, because they are required to prepare for a hearing on a claim for compensation that is expired, they are unfairly subjected to considerable expense. The respondent contests these assertions, and argues that the motion for extraordinary review is motivated by a desire to impose Anchorage practices on a community that has no means of implementing them. The respondent also argues that, because an appeal seems inevitable, he will be in a better position on appeal, and his attorney's efforts more productive and economical, if the facts of the respondent's injury and disability are fully developed in the record. The parties' assertions require the commission to decide if the movants have established that (1) the postponement of review will result in injustice and significant undue expense; (2) immediate review may advance the termination of the litigation and the board's order involves an important question of law; or, (3) Officer Kokrine, and the board on review, so far departed from the requirements of due process, as to require the commission's review. The commission must also determine that the strong policy of taking appeals from final decisions is outweighed by the circumstances demonstrated by the movants. 2. Summary of decision. The commission concludes that Officer Kokrine's pre-hearing conference summary did not provide a basis for her decision to depart from the regulations. However, as the movants agreed to the process outside the regulations and did not preserve their objections, and later events have provided opportunity for correction, the movants failed to establish prejudicial error requiring immediate review. The commission also concludes that the board's decision contains possible error, but, because the movants did not demonstrate what material evidence would have been provided to the board or Officer Kokrine relevant to the factors favoring bifurcation, failure to consider those factors by Officer Kokrine or the board did not prejudice the movants. Immediate review by the commission will not advance termination of the litigation; if the appeal is allowed, resolution of the merits of the petition to dismiss the claim will only be delayed. The movants' argument that preparing for hearing the merits of the respondent's claim is an undue expense is based on the premise that the board will grant the petition to dismiss, which the respondent does not concede. Finally, the commission concludes the board may not consider the likelihood of one party prevailing over another on the merits of the claim, or of an attorney's ability to recover his fee, as a reason to avoid bifurcation. The commission denies the motion for extraordinary review. 3. Factual background and board proceedings. The following summary of facts is drawn from the movants' brief, which was not opposed by the respondent, the hearing transcript, and the board's decision. When deciding if the commission should grant extraordinary review, the commission does not review the board's findings to determine whether the findings are supported by substantial evidence in light of the whole record. Alan James reported a knee injury in January 2004. He filed a claim for compensation and knee surgery in March 2004. The next month, Alcan Electric controverted the claim based on an employer medical examination, using a board-prescribed form, asserting lack of relationship between the knee injury and the employment. At the end of November 2005, James, through his attorney, filed another claim, seeking permanent total disability compensation, medical benefits, penalty and interest. Alcan Electric controverted the claim for "ongoing medical treatment and medical benefits" based on two employer medical examination reports on December 20, 2005, again asserting the disability and the need for treatment were not work-related. Over the next year, James filed three medical summaries, the last in June 2006. No further activity occurred until James filed an affidavit of readiness to proceed on January 30, 2008, more than two years after the December 20, 2005, controversion, and more than three years after the March 2004 controversion. Alcan opposed the affidavit of readiness. On February 11, 2008, Alcan filed a petition for dismissal of the claims, based on expiration under AS 23.30.110(c). Alcan's petition also requested a separate hearing on this defense. An affidavit of readiness to proceed on the petition was filed March 3, 2008. Before the time passed for James to object to Alcan's affidavit of readiness, the parties met for a pre-hearing conference on March 5, 2008. At the conference, according to Workers' Compensation Officer Kokrine's summary, Alcan's attorney requested a hearing on the petition to dismiss "at a procedural hearing prior to the EE's claim being heard." Officer Kokrine, conducting the conference as chair, "stated that ER's Petition and EE's claim will be heard at the same hearing with ER's Petition being heard first." Officer Kokrine continued, "Ms Gabbert [Alcan Electric's attorney] stated that she has filed an ARH on ER's Petition to Dismiss and is not waiving the 60 day time limit for setting a hearing." Officer Kokrine set the hearing date for the petition to dismiss and the claim "for July 31, 2008 pursuant to the regulations." The pre-hearing summary was served on March 10, 2008. James filed an opposition to the affidavit of readiness March 11, 2008. Alcan Electric filed a petition for board review of Officer Kokrine's decision on March 20, 2008. The parties agreed to the board hearing the matter on May 8, 2008. The transcript includes the following statement by Alcan's attorney:

I asked Ms Cochrane [sic] at the prehearing to state her basis for bifurcation or for denying bifurcation, and her response was that we don't do that in Fairbanks. That was the basis.

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