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 DateJanuary 23, 2009
CourtAlaska
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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