2009-100. Linda Rockstad Movant vs. Chugach Eareckson Zurich American Insurance Co. and Novapro Risk Solutions Respondents.

Case DateFebruary 20, 2009
CourtAlaska
Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-100. Linda Rockstad Movant vs. Chugach Eareckson Zurich American Insurance Co. and Novapro Risk Solutions Respondents Alaska Workers' Compensation Appeals Commission Linda Rockstad, Movant, vs. Chugach Eareckson, Zurich American Insurance Co. and Novapro Risk Solutions, Respondents.Decision No. 100February 20, 2009AWCAC Appeal No. 08-033AWCB Decision No. 08-0208AWCB Case No. 200320305Final Decision Motion for Extraordinary Review of Alaska Workers' Compensation Board Interlocutory Decision No. 08-0208 issued on November 6, 2008,(fn1) by southcentral panel members Janel Wright, Chair, Linda Hutchings, Member for Industry, and Patricia Vollendorf, Member for Labor. Appearances: Linda Rockstad, pro se, movant.(fn2) Robert Bredesen, Russell, Wagg, Gabbert and Budzinski, P.C., for the respondents, Chugach Eareckson, Zurich American Ins. Co. and Novapro Risk Solutions. Commission proceedings: Motion for Oral Argument filed November 18, 2008. Motion to Accept Late Filed Motion for Extraordinary Review filed November 21, 2008. Motion to Waive Fees, Motion for Leave to be Assisted by a Person Who is Not an Attorney and Motion to Accept Late Filed Motion for Extraordinary Review granted by commission order December 11, 2008. Oral argument on Motion for Extraordinary Review presented on January 21, 2009.commissioners: David Richards,Stephen Hagedorn, Kristin Knudsen.This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. 1. Introduction. The movant filed several petitions with the board seeking to stay a Second Independent Medical Evaluation (SIME), to delete reports of employer medical evaluations from the binder provided to the examiner, and to certify the employer to the Superior Court for contempt for failure to comply with discovery requests. The board denied the petitions in an interlocutory order. The movant now asks the commission to grant extraordinary review of the board's order. The movant asserts that an important question of law on which there are grounds for differing opinions presented in her motion respecting (1) the board's obligation to assure the contents of the binders are reliable scientific evidence; (2) the board's authority to determine the truth or falsity of the report before it is provided to the examiner; and, (3) whether an oral stipulation is binding on the parties. The movant asserts that the board disregarded its regulations in refusing to sanction the employer's discovery violations and that this presents an issue that would otherwise evade review. Finally, she asserts that the board's order denies her due process because 8 AAC 45.092(i) requires her to prepay the examiner's deposition fees, without a right to obtain a fee waiver as an indigent person. The respondent contests these assertions, and argues that the motion for extraordinary review is motivated by a desire to delay a hearing on the claim, that the board has issued repeated discovery orders on the same subjects, and that the movant's efforts to exclude the employer medical examination reports have been rejected previously. The respondent also argues that this case has been delayed long enough, and that the board's decision contains no error sufficient to require extraordinary review. The parties' assertions require the commission to decide if the movant has established that (1) she presents an important question of law on which there are grounds for differing opinions and immediate review may advance the termination of the litigation; or, (2) the board, on review of the prehearing officer's ruling, so far departed from the requirements of due process or the board's regulations as to require the commission's immediate review; or, (3) she presents a strong possibility of prejudicial error that would otherwise evade review and immediate guidance is needed. The commission must also determine that the strong policy of taking appeals from final decisions is outweighed by the circumstances demonstrated by the movant. 2. Summary of decision. The commission concludes that the movant failed to establish a strong possibility of prejudicial error that outweighs the sound policy favoring appeals from final decisions. The movant did not demonstrate that she will be foreclosed from disclosing information she believes is relevant to her understanding of the history of the injury to the SIME evaluator; waiting for the final decision on the merits of her claim will not result in injustice and unnecessary delay. Immediate review by the commission will not advance termination of the litigation; if the appeal is allowed now, the resolution of the merits of the claim will only be delayed. The speculative possibility that the movant might be faced with having to depose the SIME examiner is insufficient to establish grounds for review because the SIME has not taken place, the examiner has not issued a report, and the movant has not been refused an opportunity to examine, or cross-examine, the SIME examiner. The commission denies the motion for extraordinary review. 3. Factual background and board proceedings. 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 following summary is drawn from the board's decision:
[Rockstad] was employed by Chugach Eareckson Support Services ("CESS"), which provided support services to Eareckson Air Base on the Aleutian Chain in Shemya, Alaska. The only medical provider in Shemya was the Shemya Clinic. Medical providers at the clinic were employees of the employer. This cause of action arose from a work injury reported to the Shemya Clinic by the employee on August 4, 2003. The employee reported increased right thumb and wrist pain after beginning an administrative position with the employer, which required typing and computer work. Prior to the August 4, 2003 report of injury, as a Food Service Worker for the employer, the employee had been treated at Shemya Clinic for complaints of right elbow pain and occasional right wrist pain. The employee at that time reported experiencing right elbow pain when lifting dishes off the conveyor belt at work.(fn3)
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[In] four prior decisions we (1) ruled the employer's medical evaluation or "EME" reports will be admitted at hearing;(fn4) (2) granted the employee's request for a Second Independent Medical Examination ("SIME");(fn5) (3) ordered the employer to produce copies of its surveillance videos for the employee;(fn6) and (4) decided that subject to authentication, the surveillance videos
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