2009-097. Alcan Electrical and Engineering Inc. and Seabright Ins. Co. Movants cross-respondents vs. Michael Hope Respondent cross-respondent and Redi Electric Inc. and Novapro Risk Solutions Cross-movants, respondents.
Case Date | January 23, 2009 |
Court | Alaska |
Alaska Workers Compensation Decisions
2009.
Workers' Compensation Appeals Commission
2009-097.
Alcan Electrical and Engineering Inc. and Seabright Ins. Co. Movants cross-respondents vs. Michael Hope Respondent cross-respondent and Redi Electric Inc. and Novapro Risk Solutions Cross-movants, respondents
Alaska Workers' Compensation Appeals
CommissionAlcan Electrical and
Engineering, Inc. and Seabright Ins. Co., Movants, cross-respondents, vs.
Michael Hope, Respondent, cross-respondent, and Redi Electric, Inc. and Novapro
Risk Solutions, Cross-movants, respondents.Decision No. 097January 23, 2009AWCAC
Appeal No. 08-031 AWCB Decision No. 08-0212 AWCB Case No. 200511005Memorandum Decision and Order
Motions for Extraordinary Review from Alaska Workers'
Compensation Board Interlocutory Decision and Order No. 08-0212, given verbally
in hearing on October 16, 2008, and issued in writing on November 12, 2008, by
southcentral panel members William J. Soule, Chair, and Robert C. Weel, Member
for Industry.
Appearances: Joseph M. Cooper, Russell Wagg Gabbert and
Budzinski, for movants and cross-respondents Alcan Electrical and Engineering,
Inc. and Seabright Ins. Co. Chancy Croft, Croft Law Office, for respondent
Michael Hope. Patricia Zobel, DeLisio Moran Geraghty and Zobel, for
cross-movants and respondents Redi Electric, Inc. and Novapro Risk
Solutions.
Proceedings: Motion for Extraordinary Review of board's October
16, 2008, verbal order filed on October 23, 2008, with Motion for Stay of the
board's order. Opposition to motions filed October 31, 2008. Motion for Stay
heard November 3, 2008. Notice of board decision no. 08-0212 given November 14,
2008. Status conference held November 14, 2008. Notice of hearing and
scheduling order for renewal of Motion for Extraordinary Review and filing
cross-motions issued November 17, 2008. Renewed Motion for Extraordinary Review
and Motion for Stay filed November 21, 2008. Cross-Appeal of Redi Electric
(deemed Cross-Motion for Extraordinary Review) filed November 21, 2008.
Opposition to Motions and Cross-Appeal filed November 26, 2008. Hearing on
Motions held December 1, 2008. Notice of decision issued December 19,
2008.Appeals Commissioners:
Jim Robison, Stephen T. Hagedorn, Kristin
Knudsen.This decision has been edited to conform to technical
standards for publication.
By: Kristin Knudsen, Chair.
Stephen T. Hagedorn, Appeals Commissioner, dissenting in
part.
1. Introduction.
These motions for extraordinary review arise
from a board order at the conclusion of a hearing on a petition to join a
second employer and request for a continuance. The board directed the second
employer be joined in the employee's claim against an earlier employer and
directed the second employer to pay temporary total disability compensation
under AS 23.30.155(d) until his claim was heard. After the commission's hearing
on the motion for extraordinary review, the board issued a written decision,
again directing the second employer, Alcan Electrical, to pay temporary total
disability compensation and also directing the first employer, Redi Electric,
to pay for a Second Independent Medical Examination (SIME) under AS
23.30.110(g).
The movants, Alcan Electrical and its insurer, ask the
commission to stay the payment of temporary total disability from October 16,
2008, pursuant to AS 23.30.155(d). The movants assert that the board denied it
due process because it failed to give them a notice and an opportunity to be
heard before ordering payment. The movants also assert that the board failed to
accord them due process because no claim was filed against the movants when
payment was ordered. Finally, the movants assert that the board violated its
own procedures and regulations by considering evidence not in the record at the
time of the hearing and by ordering an SIME with an examiner that had opined
their employment was the substantial factor in bringing about the need for
surgery.
The cross-movants, Redi Electric and its insurer, assert that
their due process rights to notice and opportunity to be heard were violated by
the board's order directing the cross-movants to pay for an SIME without notice
and opportunity to be heard. The respondent, Michael Hope, contests these
assertions, and argues that the motion for extraordinary review should not be
granted because the issue underlying the objection to payment of temporary
total disability compensation has been settled by the commission's decision in
State, Department of Corrections v. Dennis. The respondent
also argues that cross-movants motion for extraordinary review is defective
because it fails to identify the relief it requests. The respondent asserts
there has been no violation of due process and requests an award of an attorney
fee.
The parties' assertions require the commission to decide if the
strong policy against accepting appeals from non-final orders is outweighed for
one of the reasons set out in 8 AAC 57.076. The movants and cross-movants argue
that they were denied due process; therefore, the commission must decide if the
movants and cross-movants demonstrated a strong possibility that the board's
order reflects a departure from the board's own regulations and requirements of
due process so as to require commission review before a final decision is
reached, or the due process issues raised would likely evade review and an
immediate decision is needed to provide guidance to the board.
The parties' request for a stay requires the commission to
decide if the movants and cross-movants will suffer irreparable harm if they
must make the payments ordered by the board and an appeal is decided in their
favor. The commission must also decide if, regarding payments under AS
23.30.155(d), the movant demonstrated that the issue is likely to be decided
adversely to the recipient, and, regarding payment of an SIME expenses, if the
cross-movants raised serious and substantial questions going to the merits of
the board's order.
2. Summary of decision.
The commission finds that the sound policy favoring appeals
from final orders is outweighed because the movants and cross-movants
demonstrated the strong possibility that the board departed from its
regulations and requirements of due process so as to call for the commission's
power of review by (1) ordering the movants to pay temporary total disability
compensation without notice or opportunity to respond to a claim against them,
and (2) ordering cross-movants to pay for, and respondent to attend, a Second
Independent Medical Examination, without notice. The commission also finds that
the issues raised by the motion and cross-motion are likely to evade review and
an immediate decision will provide guidance to the board. Therefore, the
commission grants the motion and cross-motion for extraordinary review under 8
AAC 57.76(a)(3) and (4).
Pursuant to AS 23.30.125(c), the commission grants the motion
for a stay of the order directing a Second Independent Medical Examination
(SIME) pending the outcome of the decision on appeal, unless the parties agree
that an SIME is required under AS 23.30.095(k) and one is ordered by the board.
The commission majority denies the motion for stay of payment of temporary
total disability compensation benefits under AS 23.30.155(d); provided that,
insofar as the board's order directed payment of benefits beyond the date of
medical stability, the order is stayed effective the date of medical stability,
which the recipient's counsel represents will be reached six to eight weeks
from the date of hearing. The commission invites the division Director to
intervene as the appeal concerns the authority of the board and the
interpretation of the Department of Labor and Workforce Development's
regulations.
3. Factual background and board
proceedings.
The following summary of facts is drawn from the movants'
brief, to the extent 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. The commission does not have the board record to consult.
Therefore, the decision to accept or deny extraordinary review should not be
considered as a decision on the merits of the board's decision.
Michael Hope injured his back in a fall from a ladder in June
2005. His employer, Redi Electric, Inc., voluntarily paid an initial period of
compensation. Later, a dispute arose and Redi Electric controverted all
benefits in March 2007. Hope filed a workers' compensation claim seeking
medical benefits and disability compensation from Redi Electric, Inc. in May
2007. The claim was controverted on the grounds that the need for surgery and
related disability were not related to the injury in 2005. The parties
proceeded toward hearing. In a deposition given in early 2008, Hope said that
his back hurt worse after he worked for Alcan Electrical and Engineering, Inc.,
in 2006.
After Redi Electric's expert witness died, Redi Electric was
granted a continuance and opportunity to obtain another expert opinion; Redi
Electric also agreed, in return to Hope's consent to the continuance, to pay
Hope a short period of temporary compensation benefits. On September 24, 2008,
Redi Electric filed a petition to join Alcan Electrical and Engineering as a
last injurious employer, although the employee had not...
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