2009-105. A Wasser and Winters Co. Inc. and Alaska National Insurance Co. Appellants vs. Scott E. Linke Appellee.

Case DateApril 28, 2009
CourtAlaska
Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-105. A Wasser and Winters Co. Inc. and Alaska National Insurance Co. Appellants vs. Scott E. Linke Appellee Alaska Workers' Compensation Appeals CommissionWasser and Winters Co., Inc. and Alaska National Insurance Co., Appellants, vs. Scott E. Linke, Appellee.Decision No.105 April 28, 2009AWCAC Appeal No. 09-006 AWCB Decision No. 09-0014 AWCB Case No. 200507724Memorandum Decision and Order Motion to Stay Proceedings before the Alaska Workers' Compensation Board in AWCB Case No. 200507724, filed in an appeal from Alaska Workers' Compensation Board Decision No. 09-0014, issued January 22, 2009, by southcentral panel members Judith DeMarsh, Chair, David B. Robinson, Member for Labor, and Dave Kester, Member for Industry.(fn1) Appearances: Robert McLaughlin, Mann, Johnson, Wooster and McLaughlin, for movants, appellants Wasser and Winters Co., Inc. and Alaska National Insurance Co. Michael J. Patterson, Esq., for respondent, appellee Scott E. Linke. Commission proceedings: Appeal filed February 2, 2009. Motion to Stay Proceedings Before the Board filed by appellants March 31, 2009. Opposition to Motion for Stay of Order for Hearing Before the Alaska Workers' Compensation Board on May 5, 2009, filed by appellee March 31, 2009. Hearing on Motion to Stay Proceedings held April 7, 2009. Order on Motion to Stay Proceedings issued April 10, 2009. Appellants' Motion to Dismiss Appeal filed April 15, 2009. Appeal dismissed April 24, 2009. Order on Motion to Stay Proceedings, originally issued April 10, 2009, re-issued as a memorandum decision and order with minor changes on April 28, 2009.Commissioners: Jim Robison, Philip Ulmer, Kristin Knudsen. This decision has been edited to conform to technical standards for publication. By: Kristin Knudsen, Chair. Appellants, Wasser and Winters Co., Inc., and Alaska National Insurance Co., filed an appeal of Alaska Workers' Compensation Board Decision No. 09-0014, challenging the board's limitation on the employer medical examiner's ability to direct psychiatric testing in performing his examination. The board directed that the employer's medical examiner, Dr. Rapaport, may review all medical records, including testing that has already been done, and interview the employee.(fn2) However, based on the board-appointed medical expert's opinion that additional testing would be harmful to the employee,(fn3) the board barred the employer's medical examiner from requiring diagnostic tests.(fn4) Appellants petitioned the board for a continuance of the scheduled hearing.(fn5) On March 17, 2009, the board's designee, Workers' Compensation Officer D. Simpson, denied the petition for a continuance on the basis that she lacked authority to cancel or continue the hearing under the board's regulation 8 Alaska Admin. Code 47.074, because there was no provision for continuance due to a conflict of jurisdiction when an appeal has been taken from a board decision.(fn6) The designee directed that the petition for a continuance would be heard as a preliminary matter to the scheduled board hearing on May 5, 2009.(fn7) Appellants then filed a motion in this appeal on March 31, 2009, asking the commission to stay the board from hearing the claim on May 5, 2009. Appellants argue that the outcome of this appeal is likely to affect the outcome of the board's decision. The additional evidence that could be developed by Dr. Rapaport, if he had the ability to order testing, will bear on the question of the nature of the employee's mental injury and its relationship to the employment. Appellants argue that any hearing that goes forward on the claim will conflict with the commission's jurisdiction over this appeal. Appellants urge the commission to enforce its jurisdiction and stay the board hearing. Appellants also argue that if the board goes...

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