2009-108. Linda Rockstad Movant vs. Chugach Eareckson Zurich American Insurance Co. and Novapro Risk Solutions Respondents.

• Case Date: May 11, 2009
• Court: Alaska

Alaska Workers Compensation Decisions 2009. Workers' Compensation Appeals Commission 2009-108. 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.108 May 11, 2009AWCAC Appeal No. 08-033 AWCB Decision No. 08-0208 AWCB Case No. 200320305Memorandum Decision Motion for Attorney Fees on 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, for the respondents, Chugach Eareckson, Zurich American Ins. Co. and Novapro Risk Solutions. Commission proceedings: Motion for Extraordinary Review filed November 18, 2008. Motion to Accept Late Filed Motion for Extraordinary Review filed November 21, 2008. 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 17, 2008. Oral argument on Motion for Extraordinary Review presented on January 21, 2009. Final Decision on Motion for Extraordinary Review issued February 20, 2009.(fn3) Motion for Attorney Fees and Costs filed February 27, 2009. Answer to Respondents' Motion for Attorney Fees and Costs filed March 5, 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 a motion for extraordinary review of an interlocutory order denying various petitions. The movant asserted 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 also asserted that the board disregarded its regulations in refusing to sanction the employer's discovery violations, presenting an issue that would otherwise evade review, and that the board's order denied her due process because 8 Alaska Admin. Code 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 respondents opposed the motion for extraordinary review and announced that, because they considered the motion frivolous and taken in bad faith, they would seek attorney fees.(fn4) The commission denied the motion for extraordinary review.(fn5) Respondents now seek attorney fees based on the commission's decision in Sourdough Express, Inc. v.Barron.(fn6) In that case, the commission held that a controversion filed in bad faith is a legal defense to the two-year time-bar period in AS 23.30.110(c), but that the board failed to make findings of fact sufficient to support a conclusion that the employer's controversion of the employee's claim was filed in bad faith.(fn7) The commission held that the board could not subject the employer to penalty for a bad faith controversion unless, "after drawing all permissible inferences from the evidence in favor of a facially valid formal controversion, the board finds that it lacks anylegal basis or that it was designed to mislead or deceive the employee."(fn8) On the basis of this test for bad faith, the respondents argue that the movant's motion was in bad faith because it lacked any legal basis and was dishonestly conducted.(fn9) The respondents also describe the commission's holding in Sourdough Express as "necessarily result[ing] in a conclusion that Movant was, at minimum, honestly mistaken with respect to her litigating positions. This renders the appeal frivolous, in turn entitling Respondents to a fee award."(fn10) The movant argues that the respondents are represented by an attorney, so they "should be held to a standard of conduct which is much higher than that required of a pro se litigant."(fn11) In addition to arguing that there was legal merit to her motion for extraordinary review, she argues that the respondents are more at fault for alleging that the movant committed fraud, which was not an issue properly before the...