Alaska Workers Compensation Decisions
Workers' Compensation Appeals Commission
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
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...